REGISTER INFORMATION PAGE

Vol. 32 Iss. 9 - December 28, 2015

The Virginia RegisterOF REGULATIONS is an official state publication issued every other week throughout the year. Indexes are published quarterly, and are cumulative for the year. The Virginia Register has several functions. The new and amended sections of regulations, both as proposed and as finally adopted, are required by law to be published in the Virginia Register. In addition, the Virginia Register is a source of other information about state government, including petitions for rulemaking, emergency regulations, executive orders issued by the Governor, and notices of public hearings on regulations.

ADOPTION, AMENDMENT, AND REPEAL OF REGULATIONS

An agency wishing to adopt, amend, or repeal regulations must first publish in the Virginia Register a notice of intended regulatory action; a basis, purpose, substance and issues statement; an economic impact analysis prepared by the Department of Planning and Budget; the agency’s response to the economic impact analysis; a summary; a notice giving the public an opportunity to comment on the proposal; and the text of the proposed regulation.

Following publication of the proposal in the Virginia Register, the promulgating agency receives public comments for a minimum of 60 days. The Governor reviews the proposed regulation to determine if it is necessary to protect the public health, safety and welfare, and if it is clearly written and easily understandable. If the Governor chooses to comment on the proposed regulation, his comments must be transmitted to the agency and the Registrar no later than 15 days following the completion of the 60-day public comment period. The Governor’s comments, if any, will be published in the Virginia Register. Not less than 15 days following the completion of the 60-day public comment period, the agency may adopt the proposed regulation.

The Joint Commission on Administrative Rules (JCAR) or the appropriate standing committee of each house of the General Assembly may meet during the promulgation or final adoption process and file an objection with the Registrar and the promulgating agency. The objection will be published in the Virginia Register. Within 21 days after receipt by the agency of a legislative objection, the agency shall file a response with the Registrar, the objecting legislative body, and the Governor.

When final action is taken, the agency again publishes the text of the regulation as adopted, highlighting all changes made to the proposed regulation and explaining any substantial changes made since publication of the proposal. A 30-day final adoption period begins upon final publication in the Virginia Register.

The Governor may review the final regulation during this time and, if he objects, forward his objection to the Registrar and the agency. In addition to or in lieu of filing a formal objection, the Governor may suspend the effective date of a portion or all of a regulation until the end of the next regular General Assembly session by issuing a directive signed by a majority of the members of the appropriate legislative body and the Governor. The Governor’s objection or suspension of the regulation, or both, will be published in the Virginia Register. If the Governor finds that changes made to the proposed regulation have substantial impact, he may require the agency to provide an additional 30-day public comment period on the changes. Notice of the additional public comment period required by the Governor will be published in the Virginia Register.

The agency shall suspend the regulatory process for 30 days when it receives requests from 25 or more individuals to solicit additional public comment, unless the agency determines that the changes have minor or inconsequential impact.

A regulation becomes effective at the conclusion of the 30-day final adoption period, or at any other later date specified by the promulgating agency, unless (i) a legislative objection has been filed, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 21-day objection period; (ii) the Governor exercises his authority to require the agency to provide for additional public comment, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the period for which the Governor has provided for additional public comment; (iii) the Governor and the General Assembly exercise their authority to suspend the effective date of a regulation until the end of the next regular legislative session; or (iv) the agency suspends the regulatory process, in which event the regulation, unless withdrawn, becomes effective on the date specified, which shall be after the expiration of the 30-day public comment period and no earlier than 15 days from publication of the readopted action.

A regulatory action may be withdrawn by the promulgating agency at any time before the regulation becomes final.

FAST-TRACK RULEMAKING PROCESS

Section 2.2-4012.1 of the Code of Virginia provides an exemption from certain provisions of the Administrative Process Act for agency regulations deemed by the Governor to be noncontroversial. To use this process, Governor's concurrence is required and advance notice must be provided to certain legislative committees. Fast-track regulations will become effective on the date noted in the regulatory action if no objections to using the process are filed in accordance with § 2.2-4012.1.

EMERGENCY REGULATIONS

Pursuant to § 2.2-4011 of the Code of Virginia, an agency, upon consultation with the Attorney General, and at the discretion of the Governor, may adopt emergency regulations that are necessitated by an emergency situation. An agency may also adopt an emergency regulation when Virginia statutory law or the appropriation act or federal law or federal regulation requires that a regulation be effective in 280 days or less from its enactment.The emergency regulation becomes operative upon its adoption and filing with the Registrar of Regulations, unless a later date is specified. Emergency regulations are limited to no more than 18 months in duration; however, may be extended for six months under certain circumstances as provided for in § 2.2-4011 D. Emergency regulations are published as soon as possible in the Register.

During the time the emergency status is in effect, the agency may proceed with the adoption of permanent regulations through the usual procedures. To begin promulgating the replacement regulation, the agency must (i) file the Notice of Intended Regulatory Action with the Registrar within 60 days of the effective date of the emergency regulation and (ii) file the proposed regulation with the Registrar within 180 days of the effective date of the emergency regulation. If the agency chooses not to adopt the regulations, the emergency status ends when the prescribed time limit expires.

STATEMENT

The foregoing constitutes a generalized statement of the procedures to be followed. For specific statutory language, it is suggested that Article 2 (§ 2.2-4006 et seq.) of Chapter 40 of Title 2.2 of the Code of Virginia be examined carefully.

Prior to performing acupuncture, a licensed acupuncturist shall recommend patient to obtain written documentation that the patient has received a diagnostic examination within the past six months by a licensed doctor of medicine, osteopathy, chiropractic, or podiatry acting within the scope of his practice or shall provide to the patient a written recommendation for such a diagnostic examination on a form specified by the board and signed by the patient. The original of the signed form shall be maintained in the patient's chart and a copy provided to the patient. In case patient declines, the licensed acupuncturist shall let patient sign the consent form, check the reason of decline, and perform the basic examinations, includes in basic bio-chem lab tests and image test.

Agency Decision: Request denied.

Statement of Reason for Decision: The petition was considered on October 7, 2015, by the Advisory Board on Acupuncture, which recommended that the petition be denied and that no changes be made to the regulatory language. On October 22, 2015, the Board of Medicine concurred with the recommendation. The request to add "herbs" after "food supplements" was denied because herbs are considered food supplements by the U.S. Food and Drug Administration (FDA), and there was concern that any herbs that are not food supplements and outside the oversight of the FDA may present some risk to the public. The request to add "basic examination prescription right," was denied because it would expand the scope of practice for acupuncturists to include performance or ordering of tests, and such an expansion may be inconsistent with the statutory definition of the practice of acupuncture in § 54.1-2900 of the Code of Virginia. Additionally, ordering and interpreting tests is beyond the training received in most acupuncture education programs in the United States. The request to change the requirement for documentation of referral or a recommendation for referral was not considered because the regulatory language in 18VAC85-110-100 is specifically found in § 54.1-2956.9 of the Code of Virginia.

Nature of Petitioner's Request: To allow a pharmacy providing services to a long-term care facility to provide prescription information of Schedule VI drugs to a "back-up" pharmacy located near the facility enabling the "back-up" pharmacy to provide the first dispensing of the prescription without the act constituting a transfer of the prescription.

Agency Plan for Disposition of Request: In accordance with Virginia law, the petition has been filed with the Register of Regulations and will be published on December 28, 2015. Comment on the petition may be sent by email or regular mail or posted on the Virginia Regulatory Townhall at www.townhall.virginia.gov; comment will be accepted until January 27, 2016. Following receipt of all comments on the petition to amend regulations, the board will decide whether to make any changes to the regulatory language in Regulations Governing the Practice of Pharmacy. This matter will be on the board's agenda for its meeting scheduled for March 29, 2016.

Nature of Petitioner's Request: Prohibition against euthanizing a pet against a veterinarian's recommendation if the pet owner is trying to schedule it and the veterinarian is not recommending it.

Agency Plan for Disposition of Request: The petition will be published on December 28, 2015, in the Virginia Register of Regulations and also posted on the Virginia Regulatory Townhall at www.townhall.virginia.gov to receive public comment ending January 27, 2016. Following receipt of all comments on the petition to amend regulations, the board will decide whether to make any changes to the regulatory language. This matter will be on the board's agenda for its first meeting after the comment period, which is tentatively scheduled for February 10, 2016.

NOTICES OF INTENDED REGULATORY ACTION

Vol. 32 Iss. 9 - December 28, 2015

TITLE 16. LABOR AND EMPLOYMENT

Administrative Regulation for the Virginia Occupational Safety and Health Program

Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Safety and Health Codes Board intends to consider amending 16VAC25-60, Administrative Regulation for the Virginia Occupational Safety and Health Program, which contains rules and procedures under which the Commonwealth carries out its obligations, as prescribed by Title 40.1 of the Code of Virginia and the Virginia State Plan for Occupational Safety and Health, as approved by the U.S. Department of Labor. The proposed changes are intended to accommodate statutory changes to the Code of Virginia, strengthen anti-retaliation or "whistleblower" protections for both public and private sector employees, and specify the burden of proof threshold for Virginia Occupational Safety and Health (VOSH) Program cases that go to circuit court.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Board of Pharmacy intends to consider amending 18VAC110-20, Regulations Governing the Practice of Pharmacy. In compliance with the second enactment clause of Chapter 300 of the 2015 Acts of the Assembly, the purpose of the proposed action is to adopt regulations to implement the requirement of law that facilities engaged in the compounding of sterile drugs and registered with the U.S. Secretary of Health and Human Services as outsourcing facilities must hold a permit to compound or ship compounded drugs into Virginia. The proposed amendments include (i) setting fees for approval of applications and renewal of permits and registration; (ii) specifying requirements for pharmacies that are or are not applicable to outsourcing facilities; (iii) establishing requirements for pharmacist supervision, recordkeeping, and renewal; and (iv) specifying that if a compounding pharmacy shares physical space with an outsourcing facility, the more stringent standards of good manufacturing practices are applicable.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

Regulations for Practitioners of the Healing Arts to Sell Controlled Substances

Notice of Intended Regulatory Action

Notice is hereby given in accordance with § 2.2-4007.01 of the Code of Virginia that the Board of Pharmacy intends to consider amending 18VAC110-30, Regulations for Practitioners of the Healing Arts to Sell Controlled Substances.In compliance with the second enactment clause of Chapter 117 of the 2015 Acts of the Assembly, the purpose of the proposed action is to adopt regulations to implement the requirement of law that practitioners of the healing arts must dispense controlled substances in permitted facilities. The proposed amendments include (i) setting fees for approval of applications, renewal of permits, and reinstatement of lapsed permits and (ii) associating requirements for inspections, physical standards for the facility, and notification to the board with the facility permit rather than the individual licensee. The only proposed change in physical requirements is specificity about the availability of hot and cold water, which must be within 20 feet of the selling and storage area and not located within an examination room or restroom.

The agency intends to hold a public hearing on the proposed action after publication in the Virginia Register.

REGULATIONS

Vol. 32 Iss. 9 - December 28, 2015

TITLE 1. ADMINISTRATION

VIRGINIA CODE COMMISSION

Final Regulation

REGISTRAR'S NOTICE: The Virginia Code Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4104 of the Code of Virginia, which exempts the actions of the commission relating to the adoption of regulations respecting the nature and content of the Virginia Administrative Code, making exceptions thereto, supplementing or limiting the duties of agencies thereunder, and otherwise carrying out the purposes of Chapter 41 (§ 2.2-4100 et seq.) of Title 2.2 of the Code of Virginia.

This regulatory action replaces existing regulations applicable to state agencies when filing and publishing state agency regulations and updates or establishes requirements to include (i) eliminating the filing of an entire regulation by description in lieu of filing any text; (ii) establishing a process when only a form associated with a regulation is being updated; (iii) addressing when an agency may incorporate one of its own documents by reference; (iv) adding several general rules of construction based on similar provisions for the Code of Virginia; (v) establishing a method for computation of time periods based on publication in the Virginia Register; (vi) clarifying that the PDF version of the Virginia Register is the official version; and (vii) making other updates to reflect statutory changes, current terminology, and current practices and technology.

CHAPTER 10 REGULATIONS FOR FILING AND PUBLISHING AGENCY REGULATIONS

Part I General Provisions

1VAC7-10-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Adopt textual matter by reference" means to include text from a document or publication in the regulation as a requirement or provision of the regulation.

"Agency" means any authority, instrumentality, officer, board, or other unit of the government of the Commonwealth empowered by the basic laws to adopt regulations or decide cases, except as exempted by the Virginia Register Act.

"Commission" means the Virginia Code Commission.

"File" means to submit to the registrar so that the registrar receives the regulation submission package, or required or requested information.

"Registrar" means the Registrar of Regulations, or his designee, as provided in § 2.2-4102 of the Code of Virginia.

"Regulation" means any statement of general application, having the force of law and affecting the rights or conduct of any person, promulgated by an agency in accordance with the authority conferred on it by applicable basic laws.

"Regulation submission package" means the regulation text and other information required to be submitted by the Administrative Process Act or the Virginia Register Act.

"Regulatory Information System" means the web-enabled application of the Office of the Registrar of Regulations that is used by an agency to file regulations, regulation submission packages, and related information and used by the Office of the Registrar to publish the Virginia Register of Regulations and update the Virginia Administrative Code.

"Virginia Administrative Code" or "VAC" means the codified publication of regulations under the provisions of Chapter 15 (§ 30-145 et seq.) of Title 30 of the Code of Virginia.

"Virginia Register of Regulations" or "Register" means the publication issued under the provisions of Article 6 (§ 2.2-4031 et seq.) of the Administrative Process Act.

1VAC7-10-20. Computation of time.

When Article 2 (§ 2.2-4006 et seq.) or 6 (§ 2.2-4031 et seq.) of the Administrative Process Act or the Virginia Register Act prescribes a time period that is contingent upon publication in the Register, whether before, after, or upon publication, the day of publication shall not be counted as part of the required time period. This section shall not apply to the comment period designated in § 2.2-4007.06 of the Code of Virginia to begin on the date of publication of the notice in the Register.

1VAC7-10-30. General rules of construction.

This section shall be used in the construction of the Virginia Administrative Code.

1. Catchlines of sections. The catchline or title of a section following the section number is intended as a description to indicate the content of the section and does not constitute part of the regulation.

2. Gender. A word used in the masculine includes the feminine and neuter.

3. Number. A word used in the singular includes the plural, and a word used in the plural includes the singular unless the context clearly indicates otherwise.

4. The word "includes" means includes, but not limited to.

5. The word "or" means any one or all of the items listed or any combination thereof.

1VAC7-10-40. Form and style of regulations.

A. The registrar shall develop a manual to advise agencies regarding the form and style of regulations and the codification of regulations.

B. The registrar shall provide procedures stipulating how agencies shall prepare and file with the registrar's office (i) regulations, (ii) regulation submission packages and other information concerning regulatory actions, or (iii) other information requested by the registrar for publication in the Virginia Register of Regulations or the Virginia Administrative Code.

C. Pursuant to § 30-150 of the Code of Virginia, the registrar may omit from publication in the Virginia Register of Regulations or inclusion in the Virginia Administrative Code (i) effective date clauses, (ii) severability clauses, (iii) purpose statements, and (iv) provisions that are nonregulatory in nature, such as a defined word, term, or phrase that is not used in the regulatory text.

D. The registrar may accept any of the items or provisions listed in subsection C of this section if the agency establishes a need to the satisfaction of the registrar.

1VAC7-10-50. Method of filing.

An agency shall file regulations, regulation submissions packages, and requested information electronically through the Regulatory Information System, commonly known as "RIS," unless specifically approved by the registrar to file through other means.

A. If an agency includes an Internetaddress in the text of a regulation, the agency is responsible for maintaining the accuracy and currency of the Internet address.

B. If an agency includes contact information in the text of a regulation, the agency is responsible for maintaining the accuracy and currency of the contact information. Contact information includes a title, mailing address, telephone number, email address, or similar information.

C. The agency must (i) promptly notify the registrar's office when an Internet address or contact information changes and (ii) provide the correct Internet address or contact information. The agency shall file a request for amendment as directed by the registrar and provide the revised text of the regulation.

D. The registrar may correct an Internet address or contact information upon request by an agency. In addition, the registrar may, in his discretion, make other consequential corrections pursuant to §§ 2.2-4102 and 30-150 of the Code of Virginia.

E. The registrar will publish notice of the correction.

1VAC7-10-70. Waiver by registrar.

The registrar may waive a provision of this chapter, provided that the waiver is consistent with applicable state law.

1VAC7-10-80. Agency regulatory coordinator.

The head of each agency, or his designee, shall appoint or designate an individual as the agency regulatory coordinator who shall coordinate the regulatory activities of the agency with the Office of the Registrar of Regulations.

Part IIFiling Regulations and Regulation Submission Packages with the Registrar

1VAC7-10-90. Filing regulations.

A. An agency must file all regulations, including materials incorporated by reference and forms used in administering the regulation, with the registrar. The regulations shall be filed through the Regulatory Information System or as directed by the registrar.

B. The agency shall file the full text of a regulation with the registrar, except text that is incorporated by reference pursuant to § 2.2-4103 of the Code of Virginia shall be filed in accordance with Part III (1VAC7-10-140 et seq.) of this chapter.

C. No regulation, or amendment or repeal thereof, is effective until filed with the registrar pursuant to § 2.2-4103 of the Code of Virginia. If the regulation, or amendment or repeal thereof, is incomplete, the registrar may decline to publish the regulation.

A. An agency shall provide the date of final agency action and the effective date of a regulation when filing a regulation submission package for a fast-track or final regulatory action, or other equivalent action.

B. When Virginia law allows a regulation to be effective upon the filing of the regulation with the registrar, the agency ordinarily should select an effective date at least three business days after filing. This subsection does not apply to emergency regulations adopted pursuant to § 2.2-4011 of the Code of Virginia.

C. An agency shall provide the effective date and expiration date of an emergency regulation when filing the emergency regulation and accompanying regulation submission package. If the expiration date of the emergency regulation is extended, the agency shall notify the registrar within three business days of the Governor's approval of the extension.

D. Pursuant to § 2.2-4012 D of the Code of Virginia, a regulation shall contain the statutory authority for the regulation. An agency shall include in the regulatory submission package the complete citation for each statute or regulation that serves as the statutory authority, as follows:

1. For a codified Virginia statute, the citation shall be to the applicable section of the Code of Virginia.

2. For an uncodified Virginia statute, the citation shall be to the applicable chapter of the designated Act of Assembly.

3. When a regulation is required to conform with federal law or regulation, the agency shall provide a citation to the specific federal law or regulation to which conformity is required.

A. Pursuant to § 2.2-4103 of the Code of Virginia, the registrar may request information in addition to the full text of a regulation for the purpose of publishing the Register and VAC.

B. An agency shall respond to a request from the registrar within three business days of the request, unless a different response time is approved by the registrar.

C. When claiming an exemption from the Administrative Process Act, an agency shall provide the specific statutory citation for the claimed exemption. Upon request of the registrar, an agency should provide confirmation from the Office of the Attorney General of the specific statute upon which the exemption is based.

1VAC7-10-120. Withdrawal of a final regulation; publication.

A. When an agency withdraws a final regulation pursuant to § 2.2-4016 of the Code of Virginia, the agency shall file a written notice of withdrawal with the registrar prior to the effective date of the regulation being withdrawn. The notice shall include:

1. The reason for the withdrawal of the regulation;

2. Agency contact information;

3. The publication information; and

4. The date of agency action.

B. The notice of withdrawal will be published in the Register.

1VAC7-10-130. Omissions and errors.

A. An agency shall notify the registrar of all omissions or errors that the agency becomes aware of in any of the information (i) submitted for publication or (ii) published in the Register or the Virginia Administrative Code.

B. The notification shall be filed with the registrar within seven business days of the date that the agency becomes aware of the omission or error.

Part III Adoption of Textual Matter by Incorporation by Reference

1VAC7-10-140. Incorporation by reference permitted.

A. A regulation may adopt textual matter by reference to all or any part of a publication or document. For the purposes of this part, a publication and a document are interchangeable. The material in the document becomes the text of the regulation and an enforceable part of the regulation.

C. Effective January 1, 2016, an agency may not adopt prospective changes to an incorporated document by referring to a future edition or revision of the document or by using "as updated," "as may be amended," "future editions," or similar language. When a document that an agency has incorporated by reference subsequently is modified by the publisher, the agency may adopt the modification but shall do so through a regulatory action. However, when an agency incorporates by reference provisions of the Code of Virginia, the Virginia Acts of Assembly, or the Virginia Administrative Code into a regulation, future amendments to the incorporated provisions are included unless other intent is specifically stated in the regulation.

D. Effective January 1, 2016, an agency may not incorporate one of its own documents by reference unless the agency establishes that the documents or circumstances are unique and highly unusual.

1VAC7-10-150. Filing requirements.

A. When an agency adopts textual matter in a regulation by reference to a document, the agency shall file a copy of the referenced document with the regulation submission package. The document shall be filed in its entirety, unless the registrar has approved a request for the document to be filed by descriptive statement as provided in 1VAC7-10-170. The agency shall also provide information as to where copies of the incorporated publications may be procured.

B. When an agency adopts textual matter by reference to Internet content, the agency shall file the Internet content with the registrar. The agency shall file a read-only electronic copy or a printed copy of the Internet content.

1VAC7-10-160. Regulation text.

When incorporating material by reference, an agency shall include in the regulatory text (i) a statement that the document is incorporated by reference; (ii) the complete name of the document; (iii) the effective, issue, revision, or publication date; (iv) the version or edition, if any; and (v) the publisher or entity that produced the document.

1VAC7-10-170. Exemptions from filing of documents adopted or incorporated by reference; requirements.

A. The requirements established in 1VAC7-10-150 and 1VAC7-10-160 do not apply to incorporation of textual matter by reference to material published in the Federal Register or the Code of Federal Regulations, or by reference to regulations of other Virginia agencies. Where such references are made, the regulatory text must contain a citation sufficient for accurate identification of the referenced material.

1. Where the material has been published in the Code of Federal Regulations, the agency must:

a. Include in the regulatory text the title, part or section, and the date of publication. Example: 40 CFR Part 260 (July 1, 2014 update) or 40 CFR §§ 260.1 through 260.11 (July 1, 2014 update); or

b. Include a section listing the applicability of the cited CFR text and stating that when a federal regulation is incorporated in the chapter, that regulation shall be as it exists and has been published on a certain date.

2. Where the referenced material has not been published in the Code of Federal Regulations but appears in the Federal Register, the agency must include in the regulatory text the volume, page, and date of the Federal Register. Example: 79 FR 264, January 2, 2014.

B. The registrar may exempt an agency from the requirement of filing the incorporated document in its entirety if such filing would be impractical or cause an undue hardship on the agency. The document shall be filed as directed by the registrar.

C. The agency shall request an exemption from this filing requirement by submitting a request to the registrar. The registrar will notify the agency whether the exemption is approved.

D. Even if exempted under subsections A and B of this section, an agency must maintain on file and make available to the public the full text of all materials adopted by reference.

Part IV Forms

1VAC7-10-180. Filing requirements.

A. An agency shall file any form that the agency intends to incorporate into or use in administering the regulation with the proposed or final, including fast-track, regulation submission package for publication in the Register pursuant to § 2.2-4031 A of the Code of Virginia. The agency shall include on the face of the form (i) the date of issuance or revision and (ii) a form number.

B. A form is not a substitute for regulation text and may not contain requirements that are not in the Code of Virginia or VAC.

1VAC7-10-190. Exemption from filing a form.

A. An agency may request an exemption from filing a form if the form (i) may be completed only online or electronically or (ii) is not in a printable format.

B. The agency shall make a request for an exemption from filing by submitting a request to the registrar. The registrar will notify the agency whether the exemption is approved.

C. If an exemption is approved, the Internet address for the form will be included in VAC.

D. The agency shall notify the registrar in writing if an Internet address for the form changes. Under the authority of § 30-150 of the Code of Virginia, the registrar may correct the Internet address in the Virginia Administrative Code.

E. The granting of an exemption under this section does not relieve an agency from maintaining the forms on file and making the forms available to the public.

1VAC7-10-200. Modification of forms in the Virginia Administrative Code.

A. The provisions of this section apply when a form for a regulation is added, amended, or removed, provided that (i) the regulatory text is not changing and (ii) the change to the form is not making a substantive change to the regulation.

B. An agency shall file form changes as directed by the registrar.

C. Notice of revised forms will be published in the Register, and forms will be updated in the Virginia Administrative Code online on the date of publication of the volume and issue of the Register in which it appears.

1VAC7-10-210. Publication.

A. For the purposes of § 2.2-4031 of the Code of Virginia, a form shall be considered to be published in the Virginia Register of Regulations if (i) the form is published in full, (ii) a hyperlink to the form is published, or (iii) a notice identifying where the form may be obtained is published.

B. The registrar shall determine how a form will be published.

Part V Virginia Register of Regulations

1VAC7-10-220. Availability and official version.

As provided in § 2.2-4031 of the Code of Virginia, the Virginia Register of Regulations is published by posting the Register on the Virginia Code Commission's website. The portable document format (PDF) file is the official version of the Register.

VA.R. Doc. No. R16-4592; Filed December 9, 2015, 10:34 a.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

DEPARTMENT OF CONSERVATION AND RECREATION

Final Regulation

REGISTRAR'S NOTICE: The Department of Conservation and Recreation is claiming an exemption from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 1 of the Code of Virginia, which excludes agency orders or regulations fixing rates or prices. The Department of Conservation and Recreation will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

The amendments to the State Park System standard rates and prices represent (i) revisions to maintain fair market value and demand for services; (ii) the addition of new facilities and offerings; (iii) updates to ensure consistency with the private sector; (iv) the deletion of fees that have become obsolete as there is no longer demand for a service; (v) revisions to reflect private concessionaires' new seasonal prices; and (vi) updates to ensure formatting consistency.

Horse Trailer Parking Fee covers up to two horses in the same trailer (also requires vehicle parking fee). All parks unless listed below.

$3.00 per trailer

$3.00 per trailer

$3.00 per trailer

$3.00 per trailer

Lake Anna

$4.00 per trailer

$4.00 per trailer

$4.00 per trailer

$4.00 per trailer

Surcharge for additional horse in same trailer beyond the first two horses.

$2.00 per horse

$2.00 per horse

$2.00 per horse

$2.00 per horse

Other Trailer Parking Fee: Applies to other trailers not covered by camping, horse trailer, and boat launch fee. (Add to daily parking fee.)

$2.00 per trailer

$2.00 per trailer

$2.00 per trailer

$2.00 per trailer

Daily Bus Parking: All Seasons. Applies to vehicles with 16 or more passenger capacity.

All parks unless listed below.

$10

$10

$10

$10

Claytor Lake, Hungry Mother, Leesylvania, Mason Neck, New River Trail

$12

$12

$12

$12

First Landing, Kiptopeke, Lake Anna, Pocahontas, Westmoreland

$15

$15

$15

$15

Natural Area Preserve Parking Fees for any Vehicle: The department may charge these fees at any Natural Area Preserve.

$2.00

$2.00

$2.00

$2.00

BASE RATE

VIRGINIA RESIDENTS

Grayson Highlands Backpacker Parking.

$12 up to 3 days

$10 up to 3 days

WEEKDAYS

WEEKENDS

WEEKDAYS

WEEKENDS

Boat Launch Fees: Required to use park boat ramps on bodies of water where motorboats are permitted. Required for all vehicles using York River Croaker Landing/Pier Area. The fee is normally added to the parking fee to create a combined park/launch payment. When a vehicle is only dropping off or retrieving a nonmotorized boat or a boater and does not pay the parking fee, the $3.00 launch fee is required.

Boat Tournament Fee for Fishing Tournaments: Registration fee is based on the number of boats registered and is nonrefundable regardless of number that actually participates. This fee is in addition to the applicable daily launch fee.

Naturally Yours Passport Plus: 12-month from date of purchase admission and parking pass to all state parks, plus 10% discount on camping, all state park merchandise, equipment rentals, and shelter rentals.

$66

Naturally Yours Parking Passport: 12-month from date of purchase admission and parking pass to park of purchaseall state parks.

Disabled Veterans Passport Admission, parking, and launch pass to all state parks, plus 50% discount on camping fees, swimming fees, shelter rentals, and department equipment rentals when provided by the department. Where equipment rentals are provided by private concessionaires, this passport does not apply. The passport shall be issued upon request to a veteran of the armed forces of the United States with a letter from the U.S. Department of Veterans Affairs, or from the military service that discharged the veteran, certifying that such veteran has a service-connected disability rating of 100%. This passport coverage shall be valid for as long as that determination by the U.S. Department of Veterans Affairs remains in effect.

No Charge

Annual and Lifetime Park/Launch/Equestrian Fees:

Lifetime Naturally Yours Passport Plus for Boaters and Equestrians: Lifetime admission, parking, and launch pass to all state parks, plus 10% discount on camping, all state park merchandise, equipment rentals, and shelter rentals.

Naturally Yours Passport Plus for Boaters and Equestrians: 12-month from date of purchase admission, parking, and launch pass to all state parks, plus 10% discount on camping, all state park merchandise, equipment rentals, and shelter rentals.

$167

Park/Launch/Equestrian Passport:

12-month from date of purchase admission, parking, and launch pass to all state parks including Leesylvania.

$141

12-month from date of purchase admission, parking, and launch pass to First Landing, Kiptopeke, or Lake Anna. Good only at park of purchase.

$107

12-month from date of purchase admission, parking, and launch pass to park of purchase other than Leesylvania, First Landing, Kiptopeke, or Lake Anna.

$87

Senior Naturally Yours Passport Plus for Boaters and Equestrians: Annual permit for all parks including Leesylvania.

$133

Senior Park/Launch/Equestrian Passport:

12-month from date of purchase admission, parking, and launch pass to all state parks including Leesylvania.

$120

12-month from date of purchase admission, parking, and launch pass to First Landing, Kiptopeke, or Lake Anna. Good only at park of purchase.

$87

12-month from date of purchase admission, parking, and launch pass to park of purchase other than Leesylvania, First Landing, Kiptopeke, or Lake Anna.

$73

Buggs Island Lake Special Annual Park/Launch/Equestrian Pass: Good only at Occoneechee and Staunton River State Parks.

2. Except as otherwise noted, boat launching shall be free for up to one boat per vehicle (maximum of two vehicles) per campsite, cabin, lodge, camping cabin, travel trailer, or camping lodge.

3. Parking fees are waived for any vehicle displaying disabled license plates or temporary disabled parking identification issued by any state or the federal government. However, the fee for any additional types of trailers, the boat launch fee or the portion of any combined parking-launching fee that applies to boat launching shall be collected from such vehicles. Additionally, the price for annual passes and lifetime passes that include boat launching for qualified disabled individuals shall be calculated by subtracting the applicable parking pass fee from the park/launch pass fee.

4. Parking fees are waived for any vehicle occupied solely by students and/or teachers and/or assisting personnel participating in an official activity of a bona fide school, home school, or institution of higher learning. Parks may require that individuals in vehicles other than those marked as a school bus verify their official activity by letter from the school or approved field trip form, or in the case of home school groups, proof of home school status such as current ID card from a state or national home school organization (HEAV, HSLDA, etc.) or a copy of the letter from the school district that acknowledges "Notice of Intent" to home school for that school year.

5. Parking fees are waived for official vehicles of federal, state, and local governments while on official business; vehicles making deliveries to the park; contractor and business vehicles performing work in the park; and emergency vehicles while conducting official business, including training.

6. Parking fees are waived for park employees during time of employment, including family and household members of staff occupying staff residences, visitors to staff residences, and park volunteers entering the park to perform volunteer duties.

7. Parking fees may be waived for vehicles conducting research or collecting activities provided such waiver is included in the language of the Research and Collection Permit as required in 4VAC5-30-50.

8. The period covered by a daily parking fee shall be midnight to midnight. Park guests utilizing overnight parking when and where available (e.g., backpackers, overnight fishermen, etc.) will be required to pay the applicable daily parking fee for each calendar day that their vehicle is in the parking lot (partial days included).

10. Parking fees are waived for visitors entering the park for the sole purpose of dining at the park restaurant at Douthat and Hungry Mother State Parks.

11. Parking fees are waived at state parks for participants in Walk for Parks, Fall River Renaissance, Envirothons, March for Parks, Operation Spruce-Up Day, Stewardship Virginia, National Trails Day, and other park-sanctioned public service events as approved by the director.

12. Daily parking fees are reduced to $1.00 for vehicles occupied by participants in fund-raising events sponsored by nonprofit organizations (Walk-A-Thons, etc.) provided the sponsor has obtained a special use permit from the park that contains provisions for the identification of participants in the event.

13. Parking fees shall be waived for persons using park roads to gain legal access to their private residence and guests to such residences and for vehicles passing through, but not stopping in, a park on a public roadway.

14. Revenue collected from special event parking and/or admission fees may be divided between the park and the event sponsor if so designated and approved in the special event permit following a determination made by the director that the revenue split is in the benefit of the Commonwealth.

15. Annual Park/Launch/Equestrian passes cover the park entrance or parking fee for up to two horses in the same horse trailer or other allowable trailers. Annual and Lifetime parking-only passes do not include trailers.

16. Parking fees are waived for service vehicles such as tow trucks when entering the park to service a visitor vehicle.

17. Parking fees are waived for visitors entering the park to attend a performance by a U.S. military band if this is a required condition for the band's performance.

18. Parking fees are included in the rental fees for meeting facilities, up to the capacity of the facility and provided that this waiver of fee is included in the rental agreement for the facility.

19. Parking fees are waived for a period of up to 15 minutes for persons entering the park to deposit materials in community recycling collection containers.

21. Annual parking passes that do not include boat launch require payment of daily launch fee if launching a boat at any park or for all vehicles using Croaker Landing/Pier Area at York River State Park.

22. Annual parking pass holders are not guaranteed the parking privileges of the pass should parking places be unavailable.

Late Night Fishing: All parks where available (also requires parking fee)

$3.00 per person per night

ADMISSION

Natural Tunnel Chairlift:

Children under age 6

Free

Round trip per person

$3.00$4.00

One-way per person

$2.00$3.00

Group Rate Round Trip per person (10 or more)

$2.00$3.00

Season Pass

$20

Daily Pass (Good for unlimited trips on date of issue, good for one person only)

$6.00

Archery Range: All parks where available; per person user fee

$2.00 per day (over 12) $1.00 per day (age 3 through 12) $15 per year (any age)

Bear Creek Lake

$5.00 per day (over 12) $3.00 per day (age 3 through 12) $45 per year (any age) $3.00 per person, per day group fee (minimum of 10 participants)

Pocahontas and New River Trail Horse Show Admission

$5.00 per person Children 12 and under free

Park Sponsored Special Event Vendor Fees. All parks where available unless otherwise noted

$125 per merchandise vendor $150 per food vendor

Occoneechee Pow Wow

$150 per merchandise vendor $175 per food vendor

Mason Neck Fall Special Event

$50 per vendor

Caledon Art and Wine Festival

$50 per artist vendor $100 per winery vendor

New River Trail

$25 per merchandise vendor $25 per food vendor

Notes on admission/entrance fees:

1. Fees are waived at Natural Tunnel for use of the chairlift on one designated "Customer Appreciation Day" per year.

2. Museum entrance fees are waived at the Southwest Virginia Museum during the "Festival of Trees" event for members of groups who submitted trees for the display.

3. For park museums and historic features that charge an entrance fee, visitors participating in the Time Travelers program of the Virginia Association of Museums shall be charged the existing per person group rate for that facility.

4. Entrance fees are waived at the Southwest Virginia Museum on Veteran's Day, November 11, of each year.

Season Swimming Permit: All parks where available unless otherwise noted.

$44 (Age 3 through 12) $55 (Age 13 and over)

Staunton River, Natural Tunnel, and Westmoreland

$55 (Age 3 through 12) $66 (Age 13 and over)

Pocahontas

$66 (Age 3 through 12) $77 (Age 13 and over)

After-Hours Exclusive Use of Pool or Swimming Area: All parks where available. Requires prior reservation. Rental period of approximately 1-2 hours, depending upon operating schedule and amount of available daylight. Cancellation fee charged if reservation is canceled less than 3 days before the date of event unless cancellation is for inclement weather or canceled by the park.

1. Nonswimming adults in street clothes admitted to swimming areas free when supervising children age 12 and under.

2. Rain check Policy for Swimming: All state parks will issue a rain check, good for a period of 12 months from the date of issue, to any paying customer (does not apply to free swimming vouchers) if the swimming area is forced to close for 40 minutes or more due to inclement weather. Rain checks may be issued only to patrons present at the swimming area at the time of closure.

3. A full refund is available for a group reservation only if the park or swimming area contractor is notified three days in advance of the time of the reservation. In the event that the group is unable to complete their reservation due to inclement weather, rain checks will be issued to the individual members of the group in the same manner as other park patrons.

4. All Season Swimming Permits include parking during the swimming season only.

Camping fees include free use of dump station and free swimming and boat launching for members of the camping party during their stay at the property, when and where available, except that at Kiptopeke State Park guest is subject to applicable launch fee unless the trailer is returned to the campsite immediately after launching. The number of campers per campsite is limited to six individuals except when all campers are members of the same household.

ALL SEASONS (Per site fees)

Standard Sites: No hookup; access to bathhouse and restrooms.

All parks with standard sites unless noted below.

$24 per night

$20 per night

Bear Creek and Occoneechee Waterfront Sites.

$31 per night

$26 per night

Kiptopeke, First Landing, Lake Anna.

$28 per night

$24 per night

Douthat.

$31 per night

$26 per night

Water and Electric Sites: Access to water and electric hookups; access to bathhouse and restrooms.

All parks where available unless noted below, including Chippokes Campground A.

James River Equestrian Group AreaCampground (persons renting the entire equestrian campground will receive a 10% discount on the combined price for sites and stalls, including transaction fees).

$254 per night

$216 per night

Camping – Other Fees

Camping Site Transaction Fee: Applies to each purchase transaction of a camping visit to a campsite (i.e., one transaction fee per camping visit per site no matter how many nights). Applies to Internet, reservation center, and walk up visits.

$5.00

Site Specific Reservation Fee: Applies to a site designated as a "Reservable Site."

$3.00 per night

Dump Station Fee: Free to state park campers during stay.

$10 per use

Camping Reservation Cancellation Fee Individual Site.

$10 per reservation

Camping Reservation Cancellation Fee Group Sites.

$30 per reservation

Camping Reservation Transfer Fee.

$5.00 per reservation

Douthat: Whispering Pines and Beaverdam Reservation.

$33 per night

Hiker or noncamper Shower Fee at Virginia State Parks.

$5.00 per person

Sky Meadows: Wheelbarrow Rental Fee for hike-in campers.

$10 per wheelbarrow rented

Notes on camping:

1. Check-out time is 3 p.m. and check-in time is 4 p.m.

2. Camping Transfer/Cancellation/Early Departure Policy.

a. Any fees to be refunded are calculated less the applicable cancellation fee(s)fee or fees.

b. Fees paid to the reservation center by credit card will be refunded to the original credit card charged.

c. Fees paid by check or money order to the reservation center, or by any method at the park, will be refunded by state check.

d. A customer may move a camping reservation to another date or park, referred to as a transfer, through the reservation center only, and prior to 4 p.m. on the scheduled date of arrival. If the reservation center will not be open again prior to the start date of the reservation, transferring is not an option. There is a fee to transfer.

e. A camping reservation may be canceled until 4 p.m. on the scheduled date of arrival but campers will be charged the cancellation fee. This cancellation fee applies to each separate reservation made.

f. Once the 4 p.m. check-in time is reached on the scheduled day of arrival, any adjustment to a reservation is considered an early departure.

g. After the check-in time is reached, the first night is considered used whether the site is occupied or not.

h. There is a one-night penalty, deducted from any amount available for refund, for early departure.

3. Campers are allowed two vehicles per campsite per day without charge of a parking fee. Additional vehicles, beyond two, must pay the prevailing parking fee in effect at the park for each day that the vehicle(s) isvehicle or vehicles are parked in the park. The number of vehicles allowed to park on the campsite varies according to site design and size of other camping equipment. No vehicles shall park on a campsite in other than the designated area for this purpose. Camper vehicles that do not fit on the site, whether or not they require the special camper vehicle fee, must park in the designated overflow parking area.

4. Each member of the camping party, except in primitive group areas, up to the maximum allowable per site, may receive an entrance pass to the park's swimming facility on the basis of one pass per night of camping. Passes are only issued during days and seasons of operation of the swimming facility and are only good during the member's registered stay.

5. Damage to campsites, not considered normal wear and tear, will be billed to the person registered for the campsite on an itemized cost basis.

6. At honor collection sites, the stated camping fees on this list shall be considered as having tax included. Honor collection is defined as the payment of the camping fee on-site at the park at a nonelectronic collection point at which the payment is placed in a box or safe provided for that purpose.

7. Horse stalls may only be rented in conjunction with the rental of a campsite in the equestrian campground and a person must occupy the campsite. All horses brought to the park by overnight guests must be kept in rental stalls except in primitive equestrian areas at New River Trail and James River State Parks.

Camping cabins, camping lodges, yurts, and travel trailers located in campgrounds and operated in conjunction with the campground.

Per-Night Rental Fee

Per-Week Rental Fee

Per-Night Rental Fee

Per-Week Rental Fee

Camping Cabin rental rate: (2-night minimum rental required)

$55

NA

$47

NA

Yurt rental: Standard fee

$120

$719

$101

$611

Travel Trailers: 25-30' Standard fee

$120

$719

$101

$611

Camping Lodges: Standard fee

$109

$653

$92

$555

OTHER CABIN FEES AND CHARGES

Additional Cabin Fees:

Cabin Transaction Fee: Applies to each purchase transaction of a visit to a cabin (i.e., one transaction fee per cabin visit per site no matter how many nights). Applies to Internet, reservation center, and walk up visits.

Pocahontas Group Cabins: Reservations of $200 or more require a 25% prepayment, due within 14 days of making the reservation. Balance of fees is due 60 days prior to the reservation start date. Reservations of less than $200 require payment in full to confirm the reservation, due within 14 days of making the reservation. Cancellations made 30 days or more prior to the first day of the reservation shall receive a refund less a $30 per unit cancellation fee. Cancellations made less than 30 days prior to the first date of the reservation receive no refund unless the units are subsequently rented, in which case the refund shall be full price minus $30 per unit.

Notes on cabins and lodges:

1. Seasonal cabin and lodge rates shall be in effect according to the following schedule, except for camping cabins, camping lodges, yurts, and travel trailers, which operate on the same schedule and season as the campground at that particular park. In the event that a weekly rental period includes two seasonal rates, the higher rate will apply for the entire weekly rental period.

Friday night prior to Memorial Day through the Sunday night prior to Labor Day, and October 1 through October 31

April 1 through the Thursday night prior to Memorial Day, and Labor Day through September 30, and November 1 through November 30

December 1 through March 31

2. All dates refer to the night of the stay; checkout time is 10 a.m. and check-in time is 3 p.m.

3. The following holiday periods are charged prime season weekend rates: the Wednesday, Thursday, Friday, and Saturday period that includes Thanksgiving Day; Christmas Eve and Christmas Day; and New Year's Eve and New Year's Day.

4. Cabins and lodges require a two-night minimum stay.

5. Cabin guests are allowed two vehicles for a one or two bedroom cabin, and three vehicles for a three bedroom cabin per day without charge of parking fee. Additional vehicles must pay the prevailing parking fee for each day that the vehicle is parked in the park. The number of vehicles allowed to park at the cabin varies according to site design and other factors. All vehicles must park in designated parking areas, either at the cabin or in the designated overflow parking area.

6. Six-bedroom lodge guests are allowed six vehicles per lodge per day without charge of parking fee. Additional vehicles must pay the prevailing vehicle parking fee for each day the vehicle is parked in the park. The number of vehicles allowed to park at the lodge varies according to site design and other factors. All vehicles must park in designated parking areas, either at the lodge or in the designated overflow parking area.

7. Damage to cabins and other rental units under this section, not considered normal wear and tear, may be billed to the person registered for the cabin or rental unit on an itemized cost basis.

8. Each member of the rental party, up to the maximum allowable for the rented unit, may receive an entrance pass to the park's swimming facility on the basis of one pass per night of rental. Passes are only issued during days and seasons of operation of the swimming facility and are only good during the member's registered stay.

9. Employees of DCR and the members of committees and boards of DCR shall receive a discount of 50% on applicable cabin or lodge rates for any season, when the rental of such cabins or lodge is in connection with the official business of DCR or its committees or boards.

Notes on cabin or lodge transfer/cancellation/early departure policy:

1. Any fees to be refunded are calculated less the applicable cancellation fees listed in this section.

2. Fees paid to the reservation center by credit card will be refunded to the original credit card charged.

3. Fees paid by check or money order to the reservation center, or by any method at the park, will be refunded by state check.

4. A customer may move a cabin or lodge reservation to another date or park, referred to as a transfer, through the reservation center only, and prior to 5 p.m. on the Monday before the scheduled date of arrival. There is an associated transfer fee. After 5 p.m. on the Monday before the scheduled date of arrival, cancellation is the only option (see note 5 below) except that transfers to a different cabin or lodge for the same rental nights shall be allowed, subject to availability, up to the check-in time for the original reservation.

5. Once the reservation is paid for, a customer may cancel in full with payment of the required cancellation fee if there are more than 30 days before the scheduled arrival date. As long as the reservation is not during the one-week minimum stay requirement period, the length of stay may be reduced without a fee as long as there are more than 30 days before the scheduled arrival. However, the length of stay cannot be less than two nights. During the 30 days prior to the scheduled arrival date, the cancellation fee is charged for each night canceled or reduced from the stay. Once the official check-in time on the scheduled arrival date is reached, the cancellation policy is no longer in effect and the early departure policy applies.

6. Once the 3 p.m. check-in time is reached on the scheduled day of arrival, any adjustment to a reservation is considered an early departure. There is a two-night minimum charge associated with all cabin, lodge, camping cabin, travel trailer, and camping lodge stays. Reducing the total nights stayed will incur a $20 per night fee. If the original reservation was for a week, the weekly discount will no longer be valid and the fee will be adjusted to the nightly rate before any refunds are calculated.

Standard Shelter Cancellation Fee: Cancellation fee deducted from refund if refund is made more than 14 days prior to the reservation date. No refunds if cancellation made within 14 days prior to date.

$10

Standard Shelter Transfer Fee: Shelter reservation may be transferred if the change is made through the reservations center prior to scheduled use.

Pocahontas Amphitheater Area: Without Heritage Center. Includes Amphitheater, Exhibit Area, Restrooms and use of sound system. Up to 1,000 attendees. See special event fees for additional attendees.

$630$650

Pocahontas Amphitheater Area Plus Heritage Center.

$840$850

Parking Attendant (per attendant).

$12 per hour

Law Enforcement Officer (per officer).

$28 per hour

Natural Tunnel: Rental of Observation Deck at mouth of tunnel for dinner parties. Includes use of chairlift for transportation of guests and supplies and set-up/take-down of tables and chairs.

$300 per 4 hours

Natural Tunnel Amphitheater Concession Building.

$42

Natural Tunnel: Sound System Rental.

$32

Natural Tunnel: Portable Dance Floor Rental.

$100

Standard Amphitheater/Gazebo Cancellation Fee: Cancellation fee deducted from refund if refund is made more than 14 days prior to the reservation date. No refunds if cancellation made within 14 days prior to date.

Environmental Education Group Canoe Tour: Available only to bona fide educational groups. Requires previous reservation and arrangements. Minimum 10 persons. Mason Neck and all other parks where available unless otherwise noted.

$3.00 per person

Standard Canoe Interpretive Tour Fee for Individuals: Applies to canoe, rowboat, or paddleboat tours. Child riding as third passenger, where allowed, is free.

1. Cancellation Policy for group reservations: Guest must cancel four days prior to the tour date in order to receive a refund. Any guest canceling less than four days before the start of the reservation will not be eligible for a refund. A one-time $10 cancellation fee will apply per reservation regardless of number of boats reserved. In the event of inclement weather where the park must cancel, the guest will be offered either a complete refund or reservation transfer to another date.

Standard Interpretive Program or Tour: such as typical staff led nature hikes or campfire programs.

Free

Fee-based Interpretive Program or Tour: (Fee only applies to programs or tours that have unusual costs or require special equipment, personnel, marketing, or other special arrangements).

$2.00 per person $6.00 per family

Fee-based Night Hike or Evening Program or Evening Tour: (Fee only applies to programs or tours that have unusual costs or require special equipment, personnel, marketing, or other special arrangements).

$325 per adult, or youth 16 through 17 with a separate stand $200 per youth ages 12 through 17, requires shared stand with a paying adult $50 per nonhunting companion

Waterfowl Hunt at Crow's Nest Natural Area Preserve Permit (maximum of 3 per person per season)

$100 each

Notes on hunting fees:

At parks where there is a "standby" process, no additional daily fee for that hunting season shall be charged if the hunter has already paid at least one previous daily hunting fee for that park's hunting season.

Casual Reception Package A: May be reserved with Wedding Package A or B. Use of Victorian Parlor or foyer; parlor set with serving tables and linens. Use of serving kitchen.

$200

Casual Reception Package B: May be reserved with Wedding Package A or B. Use of 20x30 tent; set with tables and linens. Use of serving kitchen.

$300

Formal Reception Package C: May be reserved with Wedding Package A or B. Use of 40x60 tent; sit-down reception for 100 to include tables, linens and chairs. Use of serving kitchen.

$2,250

Wedding and Reception Combination Package

Wedding and Reception Combination Package: Accommodates 100 people. Both wedding and reception are held under the same tent. Use of a 40x60 tent. Small platform stage (4"H x 8'W x 8'L). Accent rope lighting. Setup of 100 chairs. One parking attendant. Use of wedding space for previous night's rehearsal. Bride and groom dressing rooms. Free use of facilities for wedding portrait (must be scheduled). Back of tent set with serving tables and linens. Use of serving kitchen.

$2,500

Damage Fee: a minimal damage fee will be accessedassessed to the person(s) renting the property for damage to the site.

$200

Wilderness Road (Mansion and Ground Rental)

Karlan Mansion and Grounds Rental

$350 for first day $150 for each additional day

Wilderness Road Visitor Center Theater

$50 per 4 hours

Cove Ridge Center at Natural Tunnel:

PRIVATE FEE

EDUCATIONAL FEE

Cove Ridge Center Annual Membership: Membership entitles organization to a 25% discount on facility rental fees and group rates on all programming offered through the center.

$1,050 per year

$525 per year

Day Use: Exclusive use of the auditorium, meeting room, resource library, catering kitchen, great room with stone fireplace and deck for two consecutive half-day rental periods, and parking passes.

$415

$210

Overnight Use of one dorm: Includes Day Use Package plus one dorm rooms for one night and swimming (in season).

$683

$498

Overnight Use of both dorms: Includes Day Use Package plus two dorm rooms for one night and swimming (in season).

$892

$656

Wedding Package Day Use: Exclusive use of the auditorium, meeting room, resource library, catering kitchen, great room with stone fireplace and deck for three consecutive half-day rental periods, and parking passes.

$525

NA

Wedding Package Overnight: Includes Day Use Package plus one dorm for one night and swimming (in season).

$919

NA

Wedding Package Overnight: Includes Day Use Package plus both dorms for one night and swimming (in season).

$1,102

NA

Wedding Package with Amphitheater: Rental of the park amphitheater in conjunction with any of the above wedding packages.

$236 for the rental period

NA

Additional seating on deck (only available with exclusive use of the center).

$42

$0

Auditorium

$150 per half day $250 per full day

$99 per half day $183 per full day

Classroom – Library (half-day)

$63

$47

One dorm: Overnight lodging for up to 30, includes swimming (in season) and parking passes.

$420 per night April 1-October 31 $378 per night November 1-March 31

$315 per night April 1-October 31 $283 per night November 1-March 31

Both Dorms: Overnight lodging for up to 60, includes swimming (in season) and parking passes.

$630 per night April 1-October 31 $567 per night November 1-March 31

$472 per night April 1-October 31 $425 per night November 1-March 31

Per Person Student Rate for Overnight Dorm Use

$13 per person

$13 per person

Kitchen Use (when not included in package)

$50 per event

$50 per event

Pocahontas Heritage Center at Pocahontas: All reservations require 50% down at time of reservation (Nonrefundable within 14 days of event)

Wedding and Reception Package for Tayloe and Helen Murphy Hall: The hours accompanying this package are 10:00 a.m. to 10:00 p.m. on Friday, 8:00 a.m. to 10:00 p.m. on Saturday, and 9:00 a.m. to 2:00 p.m. on Sunday.

Small Wedding Package: Includes two 10 foot by 10 foot canopies, up to 50 chairs, and parking for up to 25 cars.

$250 per event

Wedding Package: Includes a 20 foot by 40 foot tent, up to 100 chairs, and parking for up to 50 cars.

$788 per event

Parking Attendant

$53 per 4 hours

Smith Mountain Lake

Meeting room at Visitor Center

$158 per day

Exceeding approved hours. All parks unless otherwise noted below.

$25 per hour

Sky Meadows

Timberlake House Meeting Room

Capacity 15 people

$150 per day 8 a.m. to 5 p.m. $50 additional per day to extend rental to 8 p.m.

Timberlake House Kitchen (in conjunction with rental of meeting room)

$25 per day or part of day

Equipment and Services Associated with Meetings and Rentals:

Microphone/Podium Rental

$15 per day

Stage Section Rental: 4' x 4'

$24 per event

First Landing

Trail Center Pergola

$95 per 3 hours

Chair Rentals

White, padded

$3.00

White, plastic event chair

$1.50

Standard folding chair

$1.00

Table Rentals

Rectangular, 6'

$7.50

Rectangular, 8'

$8.00

Round, 4'

$7.50

Round, 5'

$8.75

Round, 6'

$15

Linen Rentals: All parks unless otherwise noted

Table cloth only Place settings

$3.00 per table $2.00 each

Wilderness Road

Table cloth

$7.00

Twin Lakes

Overlay

$1.25 per table

Napkins

$0.40 per napkin

Fax

First 2 pages free $2.00 each extra page

Copies

Single copy free $0.15 each extra copy

Lost Key Fee

$10

Easels

$5.00 per day

Overhead Projector

$10 per day

TV with VCR

$10

Second TV

$10

Overhead Projector with Screen

$10

Slide Projector with Screen

$10

Flip Chart

$10

Event Set-up and Clean Up Fees

First Landing

Table and Chair Set-up Fee

$40 per event

Park labor to clean up after special events and facility rentals if not done in accordance with rental agreement or use permit

$50 per hour

Notes on conference and meeting facilities fees:

1. Conference and meeting facilities require a 30% prepayment due 10 days after making reservation, and payment of the full balance prior to or on the first day of the reservation. Cancellations made 14 or more days prior to the first day of the reservation shall be charged the lesser of 10% of the total fee or $100. Cancellations made less than 14 days prior to the first date of the reservation shall be charged 30% of the total fee.

2. Alcohol use during weddings at the Southwest Virginia Museum: Weddings held during public operating hours of the museum will not be allowed to serve alcohol. Weddings held after regular operating hours of the museum must comply with ABC permit laws and have alcohol in the designated reception areas.

VA.R. Doc. No. R16-4517; Filed December 7, 2015, 5:18 p.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCESCOMMISSION

Final Regulation

REGISTRAR'S NOTICE: The Marine Resources Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

The amendments (i) require an eel pot fisherman to use his Marine Resources Commission identification number preceded by the letter "E" on each buoy or stake attached to each eel pot and (ii) require a fish pot fisherman to use his Marine Resources Commission identification number preceded by the letter "F" on each buoy or stake attached to each fish pot.

The purpose of this chapter is to describe the lawful methods an individual shall use to identify his licensed crab pots, peeler pots or, fish pots, or eel pots.

4VAC20-140-15. Identification of eel pots.

Any person owning or using an eel pot, for which a commercial license is prescribed by law, shall display his Marine Resources Commission identification number preceded by the letter "E" on each floating buoy or stake attached to each such eel pot, in a legible and visible manner.

Any person owning or using a fish pot, for which a license is prescribed by law, shall display and maintain his current identification number, assigned by the Marine Resources Commission, preceded by the letter "F" on each floating buoy or stake attached to each such fish pot, in a legible and visible manner.

A. It shall be unlawful for any person harvesting Summer Flounder outside of Virginia's waters to do any of the following, except as described in subsections B, C, and D of this section:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 10% by weight of Atlantic croaker or the combined landings, on board a vessel, of black sea bass, scup, squid, scallops and Atlantic mackerel.

2. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 1,500 pounds landed in combination with Atlantic croaker.

3. Fail to sell the vessel's entire harvest of all species at the point of landing.

B. From the second Wednesday in March through April 19, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to do any of the following:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of the combined total of the Virginia landing limit described in subdivision 3 of this subsection and the amount of the legal North Carolina landing limit or trip limit.

2. Land Summer Flounder in Virginia for commercial purposes more than twice during each consecutive 20-day period, with the first 20-day period beginning on the second Wednesday in March.

3. Land in Virginia more than 7,500 pounds of Summer Flounder during each consecutive 20-day period, with the first 20-day period beginning on the second Wednesday in March.

4. Land in Virginia any amount of Summer Flounder more than once in any consecutive five-day period.

C. From November 1 through December 31 of each year, or until it has been projected and announced that 85% of the allowable landings have been taken, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to do any of the following:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of the combined total of the Virginia landing limit described in subdivisions 3 and 4 of this subsection and the amount of the legal North Carolina landing limit or trip limit.

2. Land Summer Flounder in Virginia for commercial purposes more than twice during each consecutive 30-day period, with the first 30-day period beginning on November 1.

3. Land in Virginia more than a total of 10,000 pounds of Summer Flounder during the first 30-day period, with the first 30-day period beginning on November 1.

4. Land in Virginia more than a total of 5,0007,500 pounds of Summer Flounder during the second 30-day period with the second 30-day period beginning on December 1.

5. Land in Virginia any amount of Summer Flounder more than once in any consecutive five-day period.

D. From January 1 through December 31 of each year, any boat or vessel issued a valid federal Summer Flounder moratorium permit and owned and operated by a legal Virginia Commercial Hook-and-Line Licensee that possesses a Restricted Summer Flounder Endorsement shall be restricted to a possession and landing limit of 200 pounds of Summer Flounder, except as described in 4VAC20-620-30 F.

E. Upon request by a marine police officer, the seafood buyer or processor shall offload and accurately determine the total weight of all Summer Flounder aboard any vessel landing Summer Flounder in Virginia.

F. Any possession limit described in this section shall be determined by the weight in pounds of Summer Flounder as customarily packed, boxed and weighed by the seafood buyer or processor. The weight of any Summer Flounder in pounds found in excess of any possession limit described in this section shall be prima facie evidence of violation of this chapter. Persons in possession of Summer Flounder aboard any vessel in excess of the possession limit shall be in violation of this chapter unless that vessel has requested and been granted safe harbor. Any buyer or processor offloading or accepting any quantity of Summer Flounder from any vessel in excess of the possession limit shall be in violation of this chapter, except as described by subsection I of this section. A buyer or processor may accept or buy Summer Flounder from a vessel that has secured safe harbor, provided that vessel has satisfied the requirements described in subsection I of this section.

G. If a person violates the possession limits described in this section, the entire amount of Summer Flounder in that person's possession shall be confiscated. Any confiscated Summer Flounder shall be considered as a removal from the appropriate commercial harvest or landings quota. Upon confiscation, the marine police officer shall inventory the confiscated Summer Flounder and, at a minimum, secure two bids for purchase of the confiscated Summer Flounder from approved and licensed seafood buyers. The confiscated fish will be sold to the highest bidder and all funds derived from such sale shall be deposited for the Commonwealth pending court resolution of the charge of violating the possession limits established by this chapter. All of the collected funds will be returned to the accused upon a finding of innocence or forfeited to the Commonwealth upon a finding of guilty.

H. It shall be unlawful for a licensed seafood buyer or federally permitted seafood buyer to fail to contact the Marine Resources Commission Operation Station prior to a vessel offloading Summer Flounder harvested outside of Virginia. The buyer shall provide to the Marine Resources Commission the name of the vessel, its captain, an estimate of the amount in pounds of Summer Flounder on board that vessel, and the anticipated or approximate offloading time. Once offloading of any vessel is complete and the weight of the landed Summer Flounder has been determined, the buyer shall contact the Marine Resources Commission Operations Station and report the vessel name and corresponding weight of Summer Flounder landed. It shall be unlawful for any person to offload from a boat or vessel for commercial purposes any Summer Flounder during the period of 9 p.m. to 7 a.m.

I. Any boat or vessel that has entered Virginia waters for safe harbor shall only offload Summer Flounder when the state that licenses that vessel requests to transfer quota to Virginia, in the amount that corresponds to that vessel's possession limit, and the commissioner agrees to accept that transfer of quota.

J. After any commercial harvest or landing quota as described in 4VAC20-620-30 has been attained and announced as such, any boat or vessel possessing Summer Flounder on board may enter Virginia waters for safe harbor but shall contact the Marine Resources Commission Operation Center in advance of such entry into Virginia waters.

K. It shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to possess aboard any vessel, in Virginia, any amount of Summer Flounder, once it has been projected and announced that 100% of the quota described in 4VAC20-620-30 A has been taken.

VA.R. Doc. No. R16-4589; Filed December 8, 2015, 3:54 p.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCESCOMMISSION

Final Regulation

Final Regulation

REGISTRAR'S NOTICE: The Marine Resources Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

The amendments (i) remove Public Ground 2 of Mathews County, known as Pultz Bar, from the definition of the Mobjack Bay Area, (ii) permit the use of hand tongs to harvest oysters from the seaside of the Eastern Shore with a valid oyster hand tong license, and (iii) establish a vessel limit for hand tonging on the seaside of the Eastern Shore.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Aid to navigation" means any public or private day beacon, lighted channel marker, channel buoy, lighted channel buoy, or lighthouse that may be at, or adjacent to, any latitude and longitude used in area descriptions.

"Clean culled oyster" means any oyster taken from natural public beds, rocks, or shoals that is three inches or greater in shell length.

"Coan River Area" means that area of the Coan River inside of Public Grounds 77 and 78 of Northumberland County.

"Deep Rock Area" means all public grounds and unassigned grounds, in that area of the Chesapeake Bay near Gwynn Island, beginning at Cherry Point at the western-most point of the eastern headland of Kibble Pond located at Latitude 37° 30.9802148' N., Longitude 76° 17.6764393' W.; thence northeasterly to the Piankatank River, Flashing Green Channel Light "3", Latitude 37° 32.3671325' N., Longitude 76° 16.7038334' W.; thence east-southeasterly to the Rappahannock River Entrance Lighted Buoy G"1R", Latitude 37° 32.2712833' N., Longitude 76° 11.4813666' W.; thence southwesterly to the southern-most point of Sandy Point, the northern headland of "The Hole in the Wall", Latitude 37° 28.1475258' N., Longitude 76° 15.8185670' W.; thence northwesterly along the Chesapeake Bay mean low water line of the barrier islands of Milford Haven, connecting headland to headland at their eastern-most points, and of Gwynn Island to the western-most point of the eastern headland of Kibble Pond on Cherry Point, said point being the point of beginning.

"Great Wicomico River Area" means all public grounds and unassigned grounds, in that area of the Great Wicomico River, Ingram Bay, and the Chesapeake Bay, beginning at a point on Sandy Point, Latitude 37° 49.3269652' N., Longitude 76° 18.3821766' W.; thence easterly to the southern-most point of Cockrell Point, Latitude 37° 49.2664838' N., Longitude 76° 17.3454434' W.; thence easterly following the mean low water line of Cockrell Point to a point on the boundary of Public Ground 115 at Cash Point, Latitude 37° 49.2695619' N., Longitude 76° 17.2804046' W.; thence southeasterly to the gazebo on the pierhead at Fleets Point, Latitude 37° 48.7855824' N., Longitude 76° 16.9609311' W.; thence southeasterly to the Great Wicomico Lighthouse; thence due south to a point due east of the southern-most point of Dameron Marsh, Latitude 37° 46.6610003' N., Longitude 76° 16.0570007' W.; thence due west to the southern-most point of Dameron Marsh, Latitude 37° 46.6609070' N., Longitude 76° 17.2670707' W.; thence along the mean low water line of Dameron Marsh, north and west to Garden Point, Latitude 37° 47.2519872' N., Longitude 76° 18.4028142' W.; thence northwesterly to Windmill Point, Latitude 37° 47.5194547' N., Longitude 76° 18.7132194' W.; thence northerly along the mean low water to the western headland of Harveys Creek, Latitude 37° 47.7923573' N., Longitude 76° 18.6881450' W.; thence east-southeasterly to the eastern headland of Harveys Creek, Latitude 37° 47.7826936' N., Longitude 76° 18.5469879' W.; thence northerly along the mean low water line, crossing the entrance to Towels Creek at the offshore ends of the jetties and continuing to Bussel Point, Latitude 37° 48.6879208' N., Longitude 76° 18.4670860' W.; thence northwesterly to the northern headland of Cranes Creek, Latitude 37° 48.8329168' N., Longitude 76° 18.7308073' W.; thence following the mean low water line northerly to a point on Sandy Point, said point being the point of beginning.

"Hand scrape" means any device or instrument with a catching bar having an inside measurement of no more than 22 inches, which is used or usable for the purpose of extracting or removing shellfish from a water bottom or the bed of a body of water.

"Hand tong" or "ordinary tong" means any pincers, nippers, tongs, or similar device used in catching oysters, which consist of two shafts or handles attached to opposable and complementary pincers, baskets, or containers operated entirely by hand, from the surface of the water and has no external or internal power source.

"James River Area" means those public grounds of the James River and Nansemond River west of the Monitor Merrimac Memorial Bridge Tunnel (Route I-664), northeast of the Mills E. Godwin, Jr. Bridge (U.S. Route 17) on the Nansemond River, and south of the James River Bridge (U.S. Route 17).

"James River Seed Area"means all public grounds and unassigned grounds in that area of the James River and its tributaries with a southeastern boundary beginning at a point on the shore on the south side of the river at Rainbow Farm Point in Isle of Wight County located at Latitude 37° 00.1965862' N., Longitude 76° 34.0712010' W.; thence north-northeasterly to a VMRC Marker "STH", Latitude 37° 00.9815328 N., Longitude 76° 33.5955842' W.; thence to a VMRC Marker "SMT", at Latitude 37° 01.3228160' N., Longitude 76° 33.3887351' W.; thence to the Flashing Green Channel Light #5, at Latitude 37° 02.3449949' N., Longitude 76° 32.7689936' W.; thence northeasterly to a VMRC Marker "NMT", Latitude 37° 02.7740540' N., Longitude 76° 32.0960864' W.; thence to a VMRC Marker "NTH" located at Latitude 37° 03.2030055' N., Longitude 76° 31.4231211' W.; thence to a point on the north shore of the river at Blunt (Blount) Point, in the City of Newport News, located at Latitude 37° 03.3805862' N., Longitude 76° 31.1444562' W.; the northern boundary, being a straight line, beginning at a point on the shore on the east side of the river in the City of Newport News, at Latitude 37° 08.4458787' N., Longitude 76° 37.2855533' W.; thence westerly to the southeast corner of the Deep Water Shoal State Replenishment Seed Area, Latitude 37° 08.4466039' N., Longitude 76° 37.4523346' W.; thence westerly to the southwest corner of the Deep Water Shoal State Replenishment Seed Area, Latitude 37° 08.4490472' N., Longitude 76° 38.0215554' W.; thence westerly to a point on the shore on the west side of the river at the mouth of Lawnes Creek in Isle of Wight County, Latitude 37° 08.4582990' N., Longitude 76° 40.2816023' W.

"Latitude and longitude" means values that are based upon a geodetic reference system of the North American Datum of 1983 (NAD83). When latitude and longitude are used in any area description, in conjunction with any physical landmark, to include aids to navigation, the latitude and longitude value is the legal point defining the boundary.

"Little Wicomico River" means that area of the Little Wicomico River inside of Public Ground 43 of Northumberland County, located in the Little Wicomico River near Bridge Creek, beginning at a point approximately 150 feet north of Peachtree Point, said point being Corner 1, located at Latitude 37° 53.2910650' N., Longitude 76° 16.7312926' W.; thence southwesterly to Corner 2, Latitude 37° 53.2601877' N., Longitude 76° 16.8662408' W.; thence northwesterly to Corner 3, Latitude 37° 53.2678470' N., Longitude 76°16.8902408' W.; thence northeasterly to Corner 4, Latitude 37° 53.3113148' N., Longitude 76° 16.8211543' W.; thence southeasterly to Corner 1, said corner being the point of beginning.

"Milford Haven" means that area of Milford Haven inside of Public Ground 7 of Mathews County, beginning at a point approximately 1,380 feet east of Point Breeze, said point being Corner 1, located at Latitude 37° 28.3500000' N., Longitude 76° 16.5000000' W.; thence northeasterly to Corner 2, Latitude 37° 28.3700000' N., Longitude 76° 16.4700000' W.; thence southeasterly to Corner 3, Latitude 37° 28.3500000' N., Longitude 76° 16.4200000' W.; thence southwesterly to Corner 4, Latitude 37° 28.3200000' N., Longitude 76° 16.4500000' W.; thence northwesterly to Corner 1, said corner being the point of beginning.

"Mobjack Bay Area" means those areasthat area of Mobjack Bay consisting of Public Ground 25 of Gloucester County (Tow Stake) and that portion of Public Ground 2 of Mathews County known as Pultz Bar described as:

Public Ground 28 of Westmoreland County is located at the mouth of Nomini Creek, beginning at a point approximately 50 feet west of White Oak Point, said point being Corner 1, located at Latitude 38° 07.6429987' N., Longitude 76° 43.0337082' W.; thence south-southeasterly to Corner 2, Latitude 38° 07.2987193' N., Longitude 76° 43.1101420' W.; thence northwesterly to Corner 3, Latitude 38° 07.7029267' N., Longitude 76° 43.3337762' W.; thence west to the mean low water line, Latitude 38° 07.7031535' N., Longitude 76° 43.3378345' W.; thence northerly and westerly along the mean low water line of Nomini Creek to a point southwest of Cedar Island, Latitude 38° 07.8986449' N., Longitude 76° 43.6329097' W.; thence northeasterly to a point on the mean low water line at the southern-most point of Cedar Island, Latitude 38° 07.8986449' N., Longitude 76° 43.6329097' W.; thence following the mean low water line of the southern and eastern sides of Cedar Island to a point, Latitude 38° 08.0164430' N., Longitude 76° 43.4773169' W.; thence northeasterly to Corner 4, Latitude 38° 08.0712849' N., Longitude 76° 43.4416606' W.; thence northeasterly to a point on the northern headland of Nomini Creek at the mean low water line, said point being Corner 5, Latitude 38° 08.2729626' N., Longitude 76° 43.3105315' W.; thence following the mean low water line of White Point to a point northwest of Snake Island, Corner 6, Latitude 38° 08.4066960' N., Longitude 76° 42.9105565' W.; thence southeast, crossing the mouth of Buckner Creek, to a point on the mean low water line of Snake Island, Corner 7, Latitude 38° 08.3698254' N., Longitude 76° 42.8939656' W.; thence southeasterly following the mean low water line of Snake Island to Corner 8, Latitude 38° 08.2333798' N., Longitude 76° 42.7778877' W.; thence south-southwesterly, crossing the mouth of Buckner Creek, to Corner 9, Latitude 38° 08.2134371' N., Longitude 76° 42.7886409' W.; thence southeasterly to a point on the mean low water line of the southern headland of Buckner Creek, Corner 10, Latitude 38° 08.1956281' N., Longitude 76° 42.7679625' W.; thence southwesterly following the mean low water line of Nomini Creek, crossing the mouth of an un-named cove at the narrowest point between the headlands and continuing to follow the mean low water line to a point on White Oak Point, Latitude 38° 07.6428228' N., Longitude 76° 43.0233530' W.; thence west to Corner 1, said point being the point of beginning.

"Oyster" means any shellfish of the species Crassostrea virginica.

"Oyster dredge" means any device having a maximum weight of 150 pounds with attachments, maximum width of 50 inches, and maximum tooth length of four inches.

"Oyster patent tong" means any patent tong not exceeding 100 pounds in gross weight, including any attachment other than rope and with the teeth not to exceed four inches in length.

"Oyster resource user fee" means a fee that must be paid each calendar year by anyone who grows, harvests, shucks, packs, or ships oysters for commercial purposes.

"Pocomoke Sound Area" means that area of Pocomoke Sound inside of Public Grounds 9 and 10 of Accomack County.

"Pocomoke and Tangier Sounds Management Area" or "PTSMA" means the area as defined in § 28.2-524 of the Code of Virginia.

"Pocomoke and Tangier Sounds Rotation Area 1" means all public grounds and unassigned grounds, within an area of the PTSMA, in Pocomoke and Tangier Sounds, bounded by a line beginning at a point on the Maryland-Virginia state line, located at Latitude 37° 54.6136000' N., Longitude 75° 53.9739600' W.; thence south to the house on Great Fox Island, Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence westerly to a point, Latitude 37° 53.3633500' N., Longitude 75° 56.5589600' W.; thence south to a point, Latitude 37° 48.4429100' N., Longitude 75° 56.4883600' W.; thence easterly to the north end of Watts Island, Latitude 37° 48.7757800' N., Longitude 75° 53.5994100' W.; thence northerly to the house on Great Fox Island, Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence southeasterly to Pocomoke Sound Shoal Flashing Light Red "8", Latitude 37° 52.4583300' N., Longitude 75° 49.4000000' W.; thence southeasterly to Messongo Creek Entrance Buoy Green Can "1", Latitude 37° 52.1000000' N., Longitude 75° 47.8083300' W.; thence southeast to Guilford Flats Junction Light Flashing 2+1 Red "GF", Latitude 37° 50.9533300' N., Longitude 75° 46.6416700' W.; thence southerly to a point on a line from Guilford Flats Junction Light to the northern-most point of Russell Island, where said line intersects the PTSMA boundary, Latitude 37° 48.4715943' N., Longitude 75° 46.9955932' W.; thence clockwise following the PTSMA boundary to a point on the Maryland-Virginia state line, said point being the point of beginning.

"Pocomoke and Tangier Sounds Rotation Area 2" means all public grounds and unassigned grounds, within an area of the PTSMA, in Pocomoke and Tangier Sounds, bounded by a line beginning at the house on Great Fox Island, located at Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence southerly to the north end of Watts Island, Latitude 37° 48.7757800' N., Longitude 75° 53.5994100' W.; thence westerly to a point, Latitude 37° 48.4429100' N., Longitude 75° 56.4883600' W.; thence northerly to a point, Latitude 37° 53.3633500' N., Longitude 75° 56.5589600' W.; thence easterly to the house on Great Fox Island, said house being the point of beginning. Also, Pocomoke and Tangier Sounds Rotation Area 2 shall include all public grounds and unassigned grounds in the PTSMA in Pocomoke Sound bounded by a line beginning at a point on the Maryland-Virginia state line, Latitude 37° 54.6136000' N., Longitude 75° 53.9739600' W.; thence following the PTSMA boundary clockwise to a point on the line from the northern-most point of Russell Island to Guilford Flats Junction Light Flashing 2+1 Red "GF", where said line intersects the PTSMA boundary, Latitude 37° 48.4715943' N., Longitude 75° 46.9955932' W.; thence northerly to Guilford Flats Junction Light Flashing 2+1 Red "GF", Latitude 37° 50.9533300' N., Longitude 75° 46.6416700' W.; thence northwesterly to Messongo Creek Entrance Buoy Green Can "1", Latitude 37° 52.1000000' N., Longitude 75° 47.8083300' W.; thence northwesterly to Pocomoke Sound Shoal Flashing Light Red "8", Latitude 37° 52.4583300' N., Longitude 75° 49.4000000' W.; thence northwesterly to the house on Great Fox Island, Latitude 37° 53.6946500' N., Longitude 75° 53.8898800' W.; thence northerly to a point on the Maryland-Virginia state line, said point being the point of beginning.

"Public oyster ground" means all those grounds defined in § 28.2-551 of the Code of Virginia or by any other acts of the General Assembly pertaining to those grounds, all those grounds set aside by court order, and all those grounds set aside by order of the Marine Resources Commission, and may be redefined by any of these legal authorities.

"Rappahannock River Area 9" means all public grounds, in that area of the Rappahannock River, bounded downstream by a line from Sharps Point, located at Latitude 37° 49.3640000' N., Longitude 76° 42.0870000' W.; thence south-southeasterly to Jones Point, Latitude 37° 46.7860000' N., Longitude 76° 40.8350000' W.; and bounded upstream by the Thomas J. Downing Bridge (U.S. Route 360).

"Rappahannock River Rotation Area 1" means all public grounds, in that area of the Rappahannock River and Chesapeake Bay, bounded by a line offshore and across the mouth of the Rappahannock River from a point on the mean low water line of Windmill Point, located at Latitude 37° 36.8200000' N., Longitude 76° 16.9460000' W.; thence southeast to Windmill Point Light, Latitude 37° 35.7930000' N., Longitude 76° 14.1800000' W.; thence southwesterly to Stingray Point Light, Latitude 37° 33.6730000' N., Longitude 76° 16.3620000' W.; thence westerly to a point on the mean low water line of Stingray Point, Latitude 37° 33.6920000' N., Longitude 76° 17.9860000' W.; and bounded upstream by a line from the mean low water line west of Broad Creek, Latitude 37° 33.9520000' N., Longitude 76° 19.3090000' W.; thence northeasterly to a VMRC Buoy on the Baylor line, Latitude 37° 34.5310000' N., Longitude 76° 19.1430000' W.; thence northeasterly to a VMRC Buoy, Latitude 37° 34.6830000' N., Longitude 76° 19.1000000' W.; thence northwesterly to a VMRC Buoy, Latitude 37° 35.0170000' N., Longitude 76° 19.4500000' W.; thence northwesterly to Sturgeon Bar Light "7R", Latitude 37° 35.1500000' N., Longitude 76° 19.7330000' W.; thence continuing northwesterly to Mosquito Point Light "8R", Latitude 37° 36.1000000' N., Longitude 76° 21.3000000' W.; thence northwesterly to the southern-most corner of the house on Mosquito Point, Latitude 37° 36.5230000' N., Longitude 76° 21.5950000' W.

"Seed oyster" means any oyster taken by any person from natural beds, rocks, or shoals that is more than 30 days from harvest for human consumption.

"Thomas Rock Area" means all public grounds and unassigned grounds, in that area of the James River, with an eastern boundary being the upstream side of the James River Bridge (U.S. Route 17), and a western boundary being a line drawn from the south side of the river at Rainbow Farm Point, a point on the shore, in line with VMRC Markers "STH" and "SMT", located at Latitude 37° 00.1965862' N., Longitude 76° 34.0712010' W.; thence north-northeasterly to a VMRC Marker "STH", Latitude 37° 00.9815328 N., Longitude 76° 33.5955842' W.; thence to a VMRC Marker "SMT", at Latitude 37° 01.3228160' N., Longitude 76° 33.3887351' W.; thence to the Flashing Green Channel Light #5, at Latitude 37° 02.3449949' N., Longitude 76° 32.7689936' W.; thence northeasterly to a VMRC Marker "NMT", Latitude 37° 02.7740540' N., Longitude 76° 32.0960864' W.; thence to a VMRC Marker "NTH" located at Latitude 37° 03.2030055' N., Longitude 76° 31.4231211' W.; thence to a point on the north shore of the river at Blunt (Blount) Point, said point being in line with VMRC Markers "NMT" and "NTH" and located at Latitude 37° 03.3805862' N., Longitude 76° 31.1444562' W.

"Unassigned ground" means all those grounds defined by any other acts of the General Assembly pertaining to those grounds, all those grounds set aside by court order, and all those grounds set aside by order of the Marine Resources Commission, and may be redefined by any of these legal authorities.

"Yeocomico River Area" means that area of the North West Yeocomico River, inside Public Ground 8 of Westmoreland County and those areas of the South Yeocomico River inside Public Grounds 102, 104, and 107 of Northumberland County.

Public Ground 8 of Westmoreland County is located in the North West Yeocomico River, beginning at a point approximately 1,455 feet northeast of Crow Bar and 1,850 feet northwest of White Point, said point being Corner 1, located at Latitude 38° 02.7468214' N., Longitude 76° 33.0775726' W.; thence southeasterly to Corner 2, Latitude 38° 02.7397202' N., Longitude 76° 33.0186286' W.; thence southerly to Corner 3, Latitude 38° 02.6021644' N., Longitude 76° 33.0234175' W.; thence westerly to Corner 4, Latitude 38° 02.6006669' N., Longitude 76° 33.0824799' W.; thence northerly to Corner 1, said corner being the point of beginning.

Public Ground 102 of Northumberland County is located in the South Yeocomico River, beginning at a point approximately 630 feet south of Mundy Point and 1,745 feet southwest of Tom Jones Point, said point being Corner 1, located at Latitude 38° 01.2138059' N., Longitude 76° 32.5577201' W.; thence east-northeasterly to Corner 2, Latitude 38° 01.2268644' N., Longitude 76° 32.4497849' W.; thence southwesterly to Corner 3, Latitude 38° 01.1091209' N., Longitude 76° 32.5591101' W.; thence northerly to Corner 1, said corner being the point of beginning.

Public Ground 104 of Northumberland County is located in the South Yeocomico River, beginning at a point approximately 670 feet north of Walker Point and 1,900 feet northwest of Palmer Point, said point being Corner 1, located at Latitude 38° 00.8841841' N., Longitude 76° 32.6106215' W.; thence southeasterly to Corner 2, Latitude 38° 00.8609163' N., Longitude 76° 32.5296302' W.; thence southeasterly to Corner 3, Latitude 38° 00.6693092' N., Longitude 76° 32.4161866' W.; thence southwesterly to Corner 4, Latitude 38° 00.6418466' N., Longitude 76° 32.5394849' W.; thence northwesterly to Corner 1, said corner being the point of beginning.

Public Ground 107 of Northumberland County is located in the South Yeocomico River, beginning at a point approximately 1,000 feet southwest of Barn Point and 1,300 feet northwest of Tom Jones Point, said point being Corner 1, located at Longitude 38° 01.1389367' N., Latitude 76° 32.3425617' W.; thence east-southeasterly to Corner 2, Latitude 38° 01.4106421' N., Longitude 76° 32.1077962' W.; thence southwesterly to Corner 3, Latitude 38° 01.2717197' N., Longitude 76° 32.2917989' W.; thence north-northwesterly to Corner 1, said corner being the point of beginning.

"York River Rotation Area 1" means all public grounds in the York River, within Gloucester County, between a line from Upper York River Flashing Red Channel Marker "8", Latitude 37° 17.8863666' N., Longitude 76° 34.6534166' W.; thence northeasterly to Red Day Marker "2" at the mouth of Cedar Bush Creek, Latitude 37° 18.6422166' N., Longitude 76° 33.8216000' W.; upstream to a line from the Flashing Yellow VIMS Data Buoy "CB", Latitude 37° 20.4670000' N., Longitude 76° 37.4830000' W.; thence northeasterly to the inshore end of the wharf at Clay Bank.

"York River Rotation Area 2" means all public grounds in the York River, within Gloucester County, from the George P. Coleman Memorial Bridge (U.S. Route 17), upstream to a line from Upper York River Flashing Red Channel Marker "8", Latitude 37° 17.8863666' N., Longitude 76° 34.6534166' W.; thence northeasterly to Red Day Marker "2" at the mouth of Cedar Bush Creek, Latitude 37° 18.6422166' N., Longitude 76° 33.8216000' W.

A. It shall be unlawful for any person to harvest oysters in the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, the Rappahannock River Area 9, Milford Haven, Little Wicomico River, Coan River, Nomini Creek and Yeocomico River, except by hand tong. It shall be unlawful for any person to have a hand scrape on board a boat that is harvesting or attempting to harvest oysters from public grounds by hand tong.

B. It shall be unlawful to harvest oysters from the seaside of the Eastern Shore area by any gear, except by hand or hand tong.

C. It shall be unlawful to harvest oysters in the Rappahannock River Rotation Areas 3 and 5, James River Area, Thomas Rock Area, Upper Chesapeake Bay Blackberry Hangs Area, Mobjack Bay Area, Great Wicomico River Area, and Pocomoke Sound Area - Public Ground 9 and 10, by any gear except by hand scrape.

D. It shall be unlawful for any person to have more than one hand scrape on board any boat that is harvesting oysters or attempting to harvest oysters from public grounds. It shall be unlawful for any person to have a hand tong on board a boat that is harvesting or attempting to harvest oysters from public grounds by hand scrape.

E. It shall be unlawful to harvest oysters from the Pocomoke and Tangier Sounds Rotation Area 1, except by an oyster dredge.

F. It shall be unlawful to harvest oysters from the Deep Rock Area, except by an oyster patent tong.

A. It shall be unlawful for any person to harvest shellfish, from the hand scrape areas in the Rappahannock River, James River, Upper Chesapeake Bay, Mobjack Bay Area, Great Wicomico River, and Pocomoke Sound Area - Public Ground 9 and 10, unless that person has first obtained a valid hand scrape license.

B. It shall be unlawful for any person to harvest shellfish with an oyster dredge from the public oyster grounds in the Pocomoke and Tangier Sounds Rotation Area 1, unless that person has first obtained a valid oyster dredge license.

C. It shall be unlawful for any person to harvest shellfish with a patent tong from the public oyster grounds in the Deep Rock Area, unless that person has first obtained a valid oyster patent tong license.

D. It shall be unlawful for any person to harvest shellfish with a hand tong from the public oyster grounds, as described in 4VAC20-720-70 A, unless that person has first obtained a valid hand tong license.

E. It shall be unlawful for any person to harvest shellfish by hand from the public oyster grounds on the Seasideseaside of the Eastern Shore, as described in 4VAC20-720-404VAC20-720-70 B 18, unless that person has first obtained a valid oyster by hand license. It shall be unlawful for any person to harvest shellfish from the public oyster grounds on the seaside of the Eastern Shore by hand tong, as described in 4VAC20-720-70 B, unless that person has first obtained a valid oyster hand tong license.

A. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses the valid licenses and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of eight bushels per day. It shall be unlawful for any vessel to exceed a daily vessel limit of 24 bushels clean cull oysters harvested from the areas described in 4VAC20-720-40 B 8 through 16.

B. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses the valid licenses and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of eight bushels per day. It shall be unlawful for any vessel to exceed a daily vessel limit for clean cull oysters harvested from the areas described in 4VAC20-720-40 B 2 through 7 and 17, whereby that vessel limit shall equal the number of registered commercial fisherman licensees on board the vessel who hold a valid gear license and who have paid the oyster resource user fee multiplied by eight.

C. It shall be unlawful for any vessel to exceed a daily vessel limit for clean cull oysters harvested from the areas described in 4VAC20-720-40 B 1, whereby that vessel limit shall equal the number of registered commercial fisherman licensees on board the vessel who hold a valid gear license and who have paid the oyster resource user fee multiplied by 12. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and hold a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses the valid licenses and has paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of 12 bushels per day.

D. It shall be unlawful for any vessel to exceed a daily vessel limit for clean cull oysters harvested from the areas described in 4VAC20-720-40 B 18, whereby that vessel limit shall equal the number of registered commercial fisherman licensees on board the vessel who are licensed by a valid gear license and have paid the oyster resource user fee, multiplied by eight. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess any oysters for commercial purposes. Any individual who possesses the valid licenses and has paid the oyster resource user fee, as described in this subsection, shall be limited to a maximum harvest of eight bushels per day.

D.E. In the Pocomoke and Tangier Sounds Rotation Area 1, no blue crab bycatch is allowed. It shall be unlawful to possess on board any vessel more than 250 hard clams.

VA.R. Doc. No. R16-4593; Filed December 9, 2015, 1:38 p.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCESCOMMISSION

Final Regulation

REGISTRAR'S NOTICE: The Marine Resources Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

A. The annual commercial black sea bass directed fishery quota is 402,584502,000 pounds. When it has been announced that the directed fishery quota has been projected as reached and the directed fishery has been closed, it shall be unlawful for any directed commercial black sea bass fishery permittee to possess aboard any vessel or land in Virginia any black sea bass.

B. The annual commercial black sea bass bycatch fishery quota is 40,000 pounds. When it has been announced that the bycatch fishery quota has been projected as reached and the bycatch fishery has been closed, it shall be unlawful for any bycatch commercial black sea bass fishery permittee to possess aboard any vessel or land in Virginia any black sea bass. In the event the bycatch fishery quota is exceeded, the amount of the quota overage shall be deducted from the following year's bycatch fishing quota.

Basis: Section 66-10.1 of the Code of Virginia directs the Department of Juvenile Justice's State Board of Juvenile Justice to promulgate regulations pursuant to the Administrative Process Act to effectuate the provisions of Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1 of the Code of Virginia for human research to be conducted or authorized by the department. Thus, the regulation is mandatory.

The board is empowered with general authority to promulgate regulations by § 66-10 of the Code of Virginia that states the board may "promulgate such regulations as may be necessary to carry out the provisions of this title and other laws of the Commonwealth administered by the Director or the Department."

Purpose: The Minimum Standards for Research Involving Human Subjects or Records of the Department of Juvenile Justice (6VAC35-170) establishes the regulatory requirements and minimum standards for research on human subjects who are under the care or supervision of department or other board regulated programs or facilities. The regulation became effective February 1, 2005, and is intended to protect the safety, rights, and confidentiality of human research subjects.

The board approved the submission of a Notice of Intended Regulatory Action (NOIRA) for 6VAC35-170, Minimum Standards for Research Involving Human Subjects or Records of the Department of Juvenile Justice, on September 13, 2013, and it was submitted on February 18, 2014. The Executive Branch review for this stage was completed on March 13, 2014. The NOIRA was published in the Virginia Register of Regulations on April 21, 2014. The public comment period ended on May 21, 2014. The board approved the proposed amendments to the regulatory language on November 12, 2014.

The proposed amendments to the regulation provide the public information on the requirements and the decision process for research proposals involving only data requests. Additionally, the proposed amendments require researchers to report noncompliance with the conditions of the signed research agreements and authorize the department and Human Research Review Committee to prohibit further research or restrict the publication and use of the data research results.

Substance: The proposed language describes how all external data requests and research proposals within the Commonwealth's juvenile justice system will be coordinated, reviewed, and approved or denied. The proposed language provides the process for the review and approval of two new types of external data requests. These are (1) external aggregate data requests (new section: 6VAC35-170-62) and (2) external case-specific data requests (new section: 6VAC35-170-65). Proposed language also addresses researcher noncompliance (new section: 6VAC35-170-185). Additional revisions have been proposed to bring the current language in the regulation related to human research in line with the requirements of Title 32.1 of the Code of Virginia.

Issues: The primary advantage of the proposed amendment to the public is providing the public with the requirements and decision process for research proposals involving only data requests. Additionally, language has been proposed requiring an additional layer of review to ensure juvenile information is adequately protected when providing de-identified data. The current timeline for the decision process for research proposals not involving human research is 40 days. The proposed timeline for the decision process for aggregate data requests has been shortened to 20 days. The primary advantage to the department and the Commonwealth is proposed language allowing the department the discretion to approve or deny research projects to ensure selected projects align with the current department needs and priorities. Finally, proposed language allows the department or the Human Research Review Committee to restrict or terminate the work of researchers who fail to comply with the approved conditions of a research proposal. There are no disadvantages to the public, the department, or the Commonwealth in adopting the proposed changes to the regulation.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Juvenile Justice proposes 1) to reduce the time allotted for decisions for aggregate data requests and 2) to require researchers to submit an annual progress report.

Result of Analysis. There is insufficient data to accurately compare the magnitude of the benefits versus the costs.

One of the proposed changes will reduce the time to make decisions for aggregate data requests from 30 days to 20 days. With this change, researchers will be informed of a decision regarding their request sooner than it is currently.

Another proposed change will require researchers to submit an annual progress report to the Department of Juvenile Justice (DJJ). DJJ reports that the majority of projects are completed within one year and expects to receive only 3-4 annual reports from researchers. Furthermore, DJJ states that the type of information that will be included in the annual report is already required by the Institutional Review Boards and should require minimal to no extra work on the researchers part to comply.

The remaining proposed changes are formatting and clarifying changes reflecting the practices currently followed and are not expected to create any significant economic impact other than improving the clarity of the regulations.

Businesses and Entities Affected. These regulations primarily apply to researchers wishing to analyze data involving juveniles within the Commonwealth's juvenile justice system. In fiscal year 2014, DJJ received six research proposals and approved five of those proposals. In the same timeframe, the average daily population in three juvenile correctional centers was 599 and the average daily population in 25 juvenile detention centers was 735. There were also 1,366 placements in 19 juvenile group homes/shelter care facilities.

Localities Particularly Affected. The regulations apply throughout the Commonwealth.

Projected Impact on Employment. The proposed amendments are not expected to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are not expected to affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are not expected to affect small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are not expected to adversely affect small businesses.

Real Estate Development Costs. The proposed amendments are not expected to affect real estate development costs.

Agency's Response to Economic Impact Analysis: The responsible Virginia Board of Juvenile Justice agency representatives have reviewed the Department of Planning and Budget's (DPB) economic impact analysis of 6VAC35-170, Minimum Standards for Research Involving Human Subjects or Records of the Department of Juvenile Justice. The agency is in agreement with DPB's analysis.

Summary:

The proposed action addresses how all external data requests and research proposals within the Commonwealth's juvenile justice system will be coordinated, reviewed, and approved or denied. The proposed amendments provide the process for the review and approval of (i) external aggregate data requests, (ii) external case specific data requests, and (iii) human research proposals. The proposed amendments also require researchers to report noncompliance with the conditions of the signed research agreements and authorize the Department of Juvenile Justice and the Human Research Review Committee to prohibit further research or restrict the publication and use of the data research results.

Unless the context clearly indicates otherwise, the following words and terms when used in this regulationchapter shall have the following meanings, consistent with the definitions offered in § 32.1-162.16 of the Code of Virginia:

"Aggregate data" means statistics that relate to broad classes, groups, or categories so that it is not possible to distinguish the properties of individuals within those classes, groups, or categories.

"Case-specific data" means nonaggregated data that provides information about individuals within a group.

"Coordinator of external research" is the department employee designated by the director to receive research proposals from external entities and ensure that the proposals are reviewed in accordance with this regulationchapter and related department procedures.

"De-identified data" means data with common identifiers, such as names, phone numbers, social security numbers, addresses, etc., removed in order to eliminate the ability of an individual viewing the data to determine the identity of an individual.

"Department" means the Department of Juvenile Justice.

"Director" means the Director of the Department of Juvenile Justice, or his designee.

"Encrypted" means the transformation of data through the use of an algorithmic process into a form in which there is a low probability of assigning meaning without the use of a confidential process or key or the securing of the information by another method that renders the data elements unreadable or unusable.

"External research" means research conducted at or using the resources of a facility, program, or organization that is owned, operated, or regulated by the department or the Board of Juvenile Justice by researchers who are not part of the department or under contract to the department, or who are not employees of another state agency conducting a study at the direction of the General Assembly.

"Human subject" means any individual who is under the department's care, custody or supervision, or a member of the family of such an individual, who is or who is proposed to be a subject of human research.

"Human research" means any systematic investigation using human subjects, that may expose those subjects to physical or psychological injury, and that departs from the application of established and accepted therapeutic methods appropriate to meet the subject's needsincluding research development, testing and evaluation, utilizing human subjects that is designed to develop or contribute to generalized knowledge. Human research shall not be deemed to include research exempt from federal research regulation pursuant to 45 CFR 46.101(b).

"Human Research Review Committee" means the committee established by the department to oversee human research proposals and activities in accordance with 6VAC35-170-130 and § 32.1-162.19 of the Code of Virginia.

"Human subject" means any individual who is under the department's care, custody, or supervision, or a member of the family of such an individual, who is, or who is proposed to be, a subject of human research.

"Informed consent" means the knowing and voluntary agreement without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion of a person who is capable of exercising free choice. The basic elements necessary for informed consent regarding human research include:

1. A reasonable and comprehensible explanation to the person of the proposed procedures and protocols to be followed, their purposes, including descriptions of any attendant discomforts, and risks and benefits reasonably to be expected;

2. A disclosure of any alternative procedures or therapies that might be helpful to the person;

3. An instruction that the person may withdraw his consent and stop participating in the human research at any time without prejudice to him;

4. An explanation of any costs or compensation that may accrue to the person and whether third party reimbursement is available for the proposed procedures or protocols; and

5. An offer to answer, and answers to, any questions by the person about the procedures and protocols.

"Legally authorized representative" means the parent or parents having custody of a prospective subject; the legal guardian of a prospective subject; or any person or judicial or other body authorized by law to consent on behalf of a prospective subject to such subject's participation in the particular human research, including an attorney in fact appointed under a durable power of attorney, provided the power grants the authority to make such a decision and the attorney in fact is not employed by the person, institution, or agency conducting the human research. No official or employee of the institution or agency conducting or authorizing the research shall act as a legally authorized representative.

"Minimal risk" means that the risks of harm anticipated in the proposed research are not greater, considering probability and magnitude, than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests.

"Nontherapeutic research" means human research in which there is no reasonable expectation of direct benefit to the physical or mental condition of the human subject.

"Organizational unit head" means the person in charge of a juvenile correctional center, halfway house, court service unit, regional office or other organizational unit of the department.

"Principal researcher" means the individual who is responsible for the research design, the conduct of research, supervision of any research staff, and the research findings.

"Research" means the systematic development of knowledge essential to effective planning and rational decision-making. It involves the assessment of current knowledge on conceptual problems selected, statement of those problems in researchable format, design of methodologies appropriate to the problems, and the application of statistical techniques to organize and analyze data. Research findings should provide valuable information to management for policy options.

"Researcher" means an individual conducting research.

"Research project" means the systematic collection of information, analysis of the data, and the preparation of a report of findings.

"Written" means the required information is communicated in writing. Such writing may be available in either hard copy or electronic form.

TheAll research shall conform to the standards of ethics of professional societies such as the American Correctional Association, the American Psychological Association, the American Sociological Association, the National Association of Social Workers, the American Evaluation Association, or their equivalent.

B. All records and all information given by research subjects or employees of the department shall be kept confidential in accordance with § 16.1-300 of the Code of Virginia, and applicable rules and regulations regarding confidentiality of juvenile records.

C. Persons who breach confidentiality shall be subject to sanctions in accordance with applicable laws, regulations, policies, and procedures.

D. Confidentiality does not preclude reporting results in a consolidated form that protects the identity of individuals,utilizing de-identified data or giving raw data to the department for possible further analysis.

2. The proposal is not a human research proposal and is not required to be reviewed by the Human Research Review Committee;

3. The principal researcher has appropriate academic or professional standing or job-related experience in the area to be studied;

4. The proposal is in the required format and includes all required information;

5. The proposal complies with basic research standards and applicable laws;

6. The data requested is accessible;

7. Department staff and resources are available to process the data request; and

8. An estimate of the time required to compile the data request.

D. The following identifiers shall be removed from the data provided to researchers:

1. Names;

2. Dates (date of birth, date of admission, date of release, etc.);

3. Postal address information, other than town or city, state, and zip code;

4. Telephone numbers;

5. Social security numbers;

6. Medical record numbers;

7. Account numbers (Juvenile Tracking System, Direct Care, etc.);

8. Biometric identifiers, including finger and voice prints; and

9. Full face photographic images and any comparable image.

E. The director or his designee may on a case-by-case basis approve the dissemination of data containing a limited number of the identifiers listed in subsection D of this section for research benefiting the department.

F. The human research review process shall be followed when the data requested by a researcher are such that a reasonable person could identify the research participants.

G. Industry standard levels of encryption shall be required to protect all juvenile record information provided to researchers.

H. Upon determining the requirements in subsection C of this section are met, the director or his designee shall designate a committee to meet within 20 business days of receiving the proposal. The committee shall:

1. Review the data requested and determine if it is necessary to restrict the scope of the information provided. The scope of information may be restricted for any reason.

4. Make a recommendation to the director or his designee to approve or disapprove the request.

I. The director shall approve or deny the proposal within 10 business days of receiving the recommendation.

J. The department shall notify the researcher of the director's decision within five business days of the director making the decision.

K. Notification of the denial of a proposal shall include a written rationale.

L. Notification of the approval of a proposal shall include the research agreement. The research agreement shall outline the respective responsibilities of the parties and will specify:

1. When progress reports shall be required. If the external research also involves human research, this schedule of progress reports shall be developed in consultation with the Human Research Review Committee;

2. The department shall have unrestricted permission to use the research findings in accordance with professional standards of research;

3. A final report shall be submitted electronically to the department;

4. Unless waived by the director or designee, all external articles, reports, and presentations made from the data collected shall be submitted electronically to the department and shall include the statement, "The findings of this study are the responsibility of the researchers, and cooperation by the Virginia Department of Juvenile Justice in facilitating this research should not be construed as an endorsement of the conclusions drawn by the researchers."; and

5. The research agreement is not effective until signed by both the principal researcher and the director or his designee.

M. The department shall provide a final signed copy of the research agreement to the principal researcher by first class mail, electronic mail, or facsimile.

A. If a human subject is competent, informed consent shall be given in writing by the subject and witnessed.

B. If a human subject is not competent, informed consent shall be given in writing by the subject's legally authorized representative and witnessed.

C. If a human subject is a minor who is otherwise capable of giving informed consent, informed consent shall be given in writing by both the minor and his legally authorized representative.

D. If two or more persons who qualify as legally authorized representatives with decision-making authority inform the researcher that they disagree as to participation of the prospective subject in human research, the subject shall not be enrolled in the human research that is the subject of the consent.

D.E. Notwithstanding consent by a legally authorized representative, no person who is otherwise capable of giving informed consent shall be forced to participate in any human research.

E.F. A legally authorized representative may not consent to nontherapeutic research unless the Human Research Review Committee determines that such nontherapeutic research will present no more than a minimal risk to the human subject.

F.G. No informed consent form shall include any language through which the human subject waives or appears to waive any legal rightsright, including any release of any individual, institution, or agency or any agentsagent thereof from liability for negligence (see § 32.1-162.18 of the Code of Virginia).

A. If the research is proposed to take place in a particular organizational unit, the principal researcher shall present a preliminary research proposal to the head of that organizational unit and get the organizational unit head's endorsement of the proposal, in accordance with procedures established by the department.

B. The principal researcher shall submit to the coordinator of external research a complete research proposal describing the research project, and containing:

1. Name, address, telephone numbers, title and affiliation of the principal researcher;

2. Name of the person who will immediately supervise the project, if different from the principal researcher;

3. Funding source, if any;

4. Date of the proposal's submission to the department;

5. Title or descriptive name of the proposed research project;

6. Statement of the specific purpose or purposes of the proposed research project with anticipated results, including benefit to the department;

7. A concise description of the research design and techniques for data collection and analysis, and of the likely effects of the research methodology on existing programs and institutional operations;

Designated department staff shall review research proposals that do not involve human research and make a recommendation to the director within 20 days of receiving the proposal. The director shall approve or deny proposals within 10 days of receiving the staff recommendation.

A. The human research review committeeHuman Research Review Committee will review proposals involving human research within 30 business days of receiving a complete research proposal.

B. At the request of the researcher, the committeeHuman Research Review Committee may conduct an expedited review when the proposed research involves no more than minimal risk to the human subjects and:

1. The proposal has been reviewed and approved by another agency's human research review committee; or

2. The review involves only minor changes to a research project that was previously approved.

A. The committeeHuman Research Review Committee shall make a recommendation to the director to deny, approve, or conditionally approve the proposed human research.

B. The director shall approve or deny the proposal within 10 business days of receiving the committee's recommendation.

C. The research agreement shall become effective only after all reviews required by this regulation and department procedures are completed and the director signs the agreement on behalf of the department. The coordinator of external research must send a copy of the signed Research Agreementresearch agreement to the researcher before the project may begin.

6VAC35-170-185. Researcher noncompliance.

A. The researcher shall report noncompliance with the approved research proposal to the Human Research Review Committee and the institutional review board.

B. Research activities identified by the department or the Human Research Review Committee as failing to comply with the approved proposal or in violation of the Code of Virginia or the Virginia Administrative Code may result in the department restricting or terminating further research and the department may prohibit the researcher from presenting or publishing the research results.

A. In accordance with § 66-10.1 of the Code of Virginia, the committeeHuman Research Review Committee shall submit to the Governor, the General Assembly, and the director at least annually a report on human research projects approved by the committee, and the status of such research, including any significant deviationsdeviation from the proposals as approved.

B. The committeeHuman Research Review Committee shall also annually submit to the Board of Juvenile Justice the same report as required by subsection A of this section. The report to the board shall also include a summary of human research proposals that were not approved.

A. The department may require periodic reports on the progress of any research project. The principal researcher shall be responsible for providing such reports, and any supplementary information requested by the department, in a timely manner.

B. The researcher shall submit an annual progress report to coordinator of external research when the research is not completed within one year of approval.

A. The department shall require that a formal final report be submitted to the coordinator of external research, and may require up to 10 copies of the report.

B. The report shall, unless waived by the director or designee, contain the following statement:

"The findings of this study are the responsibility of the researchers, and cooperation by the Virginia Department of Juvenile Justice in facilitating this research should not be construed as an endorsement of the conclusions drawn by the researchers."

NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

REGISTRAR'S NOTICE: The following regulatory action is exempt from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations provided such regulations do not differ materially from those required by federal law or regulation. The Virginia Waste Management Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

The Virginia Hazardous Waste Management Regulations, 9VAC20-60, include citations and requirements in the form of incorporated federal regulatory text at Title 40 of the Code of Federal Regulations (CFR). This regulatory amendment will bring these citations up to date and incorporate the latest Title 40 of the CFR to the one as published in the July 1, 2015, update.

As part of this regulatory action, the Virginia Waste Management Board is adopting the U.S. Environmental Protection Agency's Definition of Solid Waste (DSW) as promulgated on October 30, 2008, and subsequently updated by the Revisions to the Definition of Solid Waste Rule promulgated on January 13, 2015 (80 FR 1694). The purpose of the DSW rule is to ensure that the hazardous secondary materials recycling regulations, as implemented, encourage reclamation in a way that does not result in increased risk to human health and the environment from discarded hazardous secondary material. However, this regulatory action does not incorporate the conditional exclusion for hazardous secondary materials that are managed in land-based units. This regulatory action amends the definition of "contained" to add condition (5), which clarifies that land-based units managing hazardous secondary materials will continue to be required to comply with the applicable provisions of the Virginia Hazardous Waste Management Regulations for hazardous waste land-based units.

9VAC20-60-18. Applicability of incorporated references based on the dates on which they became effective.

Except as noted, when a regulation of the United States Environmental Protection Agency set forth in Title 40 of the Code of Federal Regulations is referenced and incorporated herein, that regulation shall be as it exists and has been published in the July 1, 2014, 2015 update.

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 260 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of 40 CFR Part 260 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 260 is incorporated by reference, the following additions, modifications and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. In 40 CFR 260.10, the term "Administrator" shall mean the administrator of the United States Environmental Protection Agency or his designee.

2. In 40 CFR 260.10, the term "contained" shall be appended by adding the following: (5) Hazardous secondary materials managed under the exclusion provided in 40 CFR 261.4(a)(23) or (a)(24) shall not be managed in a land-based unit unless the land-based unit meets the applicable standards of 40 CFR Parts 260 through 270, as incorporated by reference, for management of hazardous waste.

3. In 40 CFR 260.10, the term "EPA" shall mean the United States Environmental Protection Agency.

b. Leak detection requirements for all underground tank systems for which construction commenced after July 14, 1986; and

c. Permitting standards for underground tanks that cannot be entered for inspection.

For non-HSWA regulations, the reference date shall be January 1, 1998.

4.5. In 40 CFR 260.10, the term "Regional Administrator" shall mean the regional administrator of Region III of the United States Environmental Protection Agency or his designee.

5.6. In 40 CFR 260.10 definitions of the terms "Person," "State," and "United States," the term "state" shall have the meaning originally intended by the Code of Federal Regulations and not be supplanted by "Commonwealth of Virginia."

6.7. In 40 CFR 260.10 and wherever elsewhere in Title 40 of the Code of Federal Regulations the term "universal waste" appears, it shall be amended by addition of the following sentence: "In addition to the hazardous wastes listed herein, the term "universal waste" shall include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management Regulations as universal wastes, under such terms and requirements as shall therein be ascribed."

7.8. Throughout 40 CFR 260.11(a), the terms "EPA" and "U.S. Environmental Protection Agency" shall not be supplanted with the term "Commonwealth of Virginia."

9.10. Sections 40 CFR 260.2, 40 CFR 260.20, 40 CFR 260.21, 40 CFR 260.22, and 40 CFR 260.23 are not included in the incorporation of 40 CFR Part 260 by reference and are not a part of the Virginia Hazardous Waste Management Regulations.

10.11. Appendix I to 40 CFR Part 260 is not incorporated by reference and is not a part of the Virginia Hazardous Waste Management Regulations.

11. Regardless of the provisions of 9VAC20-60-18, the revisions to 40 CFR Part 260 as promulgated by U.S. EPA on October 30, 2008, (73 FR 64757 - 64788) (definition of solid waste rule) are not adopted herein.

A. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR Part 261 are hereby incorporated as part of the Virginia Hazardous Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of 40 CFR Part 261 are also hereby incorporated as part of the Virginia Hazardous Waste Management Regulations.

B. In all locations in these regulations where 40 CFR Part 261 is incorporated by reference, the following additions, modifications and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

1. Any agreements required by 40 CFR 261.4(b)(11)(ii) shall be sent to the United States Environmental Protection Agency at the address shown and to the Department of Environmental Quality, P.O. Box 1105, Richmond, Virginia 23218.

2. In 40 CFR 261.4(e)(3)(iii), the text "in the Region where the sample is collected" shall be deleted.

3. In 40 CFR 261.4(f)(1), the term "Regional Administrator" shall mean the regional administrator of Region III of the United States Environmental Protection Agency or his designee.

4. In 40 CFR 261.6(a)(2), recyclable materials shall be subject to the requirements of 9VAC20-60-270 and Part XII (9VAC20-60-1260 et seq.) of this chapter.

5. No hazardous waste from a conditionally exempt small quantity generator shall be managed as described in 40 CFR 261.5(g)(3)(iv) or 40 CFR 261.5(g)(3)(v) unless such waste management is in full compliance with all requirements of the Solid Waste Management Regulations (9VAC20-81).

6. In 40 CFR 261.9 and wherever elsewhere in Title 40 of the Code of Federal Regulations there is a listing of universal wastes or a listing of hazardous wastes that are the subject of provisions set out in 40 CFR Part 273 as universal wastes, it shall be amended by addition of the following sentence: "In addition to the hazardous wastes listed herein, the term "universal waste" and all lists of universal waste or waste subject to provisions of 40 CFR Part 273 shall include those hazardous wastes listed in Part XVI (9VAC20-60-1495 et seq.) of the Virginia Hazardous Waste Management Regulations as universal wastes, under such terms and requirements as shall therein be ascribed."

7. In Subparts B and D of 40 CFR Part 261, the term "Administrator" shall mean the administrator of the United States Environmental Protection Agency, and the term "Director" shall not supplant "Administrator" throughout Subparts B and D.

8. Regardless of the provisions of 9VAC20-60-18, the revisions to 40 CFR Part 261 as promulgated by U.S. EPA on October 30, 2008, (73 FR 64757 - 64788) (definition of solid waste rule) are not adopted herein.

a. A person who recycles waste that is managed entirely within the Commonwealth may petition the director to exclude the waste at a particular site from the classification as the solid waste (Parts I (9VAC20-60-12 et seq.) and III (9VAC20-60-124 et seq.) of this chapter). The conditions under which a petition for a variance will be accepted are shown in subdivision 2 of this subsection. The wastes excluded under such petitions may still, however, remain classified as a solid waste for the purposes of other regulations issued by the Virginia Waste Management Board or other agencies of the Commonwealth.

b. A person who generatedgenerates wastes at a generating site in Virginia and whose waste is subject to federal jurisdiction (e.g., the waste is transported across state boundaries) shall first obtain a favorable decision from the administrator in accordance with Subpart C, 40 CFR Part 260, before his waste may be considered for a variance by the director.

c. A person who recycles materials from a generating site outside the Commonwealth and who causes them to be brought into the Commonwealth for recycling shall first obtain a favorable decision from the administrator in accordance with Subpart C, 40 CFR Part 260, before the waste may be considered for a variance by the director.

d. A person who received a favorable decision from the administrator in the response to a petition for variance or nonwaste determination or a person whose wastes were delisted as a result of a successful petition to the administrator shall provide a notification to the department containing the following information: (i) the petitioner's name and address and (ii) a copy of the administrator's decision.

2. Conditions for a variance. In accordance with the standards and criteria in subsection B of this section and the procedures in 9VAC20-60-1420AB, the director may determine on a case-by-case basis that the following recycled materials are not solid wastes:

a. Materials that are accumulated speculatively without sufficient amounts being recycled (as defined in Part I).

b. Materials that are reclaimed and then reused within the original primary production process in which they were generated; and

c. Materials that have been reclaimed but must be reclaimed further before the materials are completely recovered.

d. Hazardous secondary materials that are reclaimed in a continuous industrial process.

e. Hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate.

f. Hazardous secondary materials that are transferred for reclamation under 40 CFR 261.4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under an RCRA Part B permit or interim status standards.

B. Standards and criteria for variances.

1. The director may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If a variance is granted, it is valid only for the following year, but can be renewed on an annual basis by filing a new application. The director's decision will be based on the following criteria:

a. The manner in which the material is expected to be recycled, and when the material is expected to be recycled, and whether this expected disposition is likely to occur (for example, because of past practice, market factors, the nature of the material, or contractual arrangement for recycling);

b. The reason that the applicant has accumulated the material for one or more years without recycling 75% of the volume accumulated at the beginning of the year;

c. The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled;

d. The extent to which the material is handled to minimize loss; and

e. Other relevant factors.

2. The director may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria:

a. How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;

b. The prevalence of the practice on an industry-wide basis;

c. The extent to which the material is handled before reclamation to minimize loss;

d. The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;

e. The location of the reclamation operation in relation to the production process;

f. Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;

g. Whether the person who generates the material also reclaims it; and

h. Other relevant factors.

3. The director may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed but must be reclaimed further before recovery is completed if, after initial reclamation, the resulting material isthe partial reclamation has produced a commodity-like (even though it is not yet a commercial product, and has to be reclaimed further). This determination will be based on the following factors:material. A determination that a partially reclaimed material for which the variance is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43 and on whether all of the following decision criteria are satisfied:

a. The degree of processing the material has undergone and the degree of further processing that is required;

b. The value of the material after it has been reclaimed;

c. The degree to which the reclaimed material is like an analogous raw material;

d. The extent to which an end market for the reclaimed material is guaranteed;

e. The extent to which the reclaimed material is handled to minimize loss; and

f. Other relevant factors.

a. Whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste;

b. Whether the partially reclaimed material has sufficient economic value that it will be purchased for further reclamation;

c. Whether the partially reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials that is used in subsequent production steps;

d. Whether there is a market for the partially reclaimed material as demonstrated by known customer or customers who are further reclaiming the material (e.g., records of sales or contracts and evidence of subsequent use, such as bills of lading); and

4. The director may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that are transferred for reclamation under 40 CFR 261.4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards. The director's decision will be based on the following criteria:

a. The reclamation facility or intermediate facility must demonstrate that the reclamation process for the hazardous secondary materials is legitimate pursuant to 40 CFR 260.43;

c. The reclamation facility or intermediate facility must not be subject to a formal enforcement action in the previous three years and not be classified as a significant noncomplier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly. Credible evidence may include a demonstration that the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary materials;

d. The intermediate or reclamation facility must have the equipment and trained personnel needed to safely manage the hazardous secondary material and must meet emergency preparedness and response requirements under 40 CFR Part 261 Subpart M;

e. If residuals are generated from the reclamation of the excluded hazardous secondary materials, the reclamation facility must have the permits required (if any) to manage the residuals, have a contract with an appropriately permitted facility to dispose of the residuals, or present credible evidence that the residuals will be managed in a manner that is protective of human health and the environment; and

f. The intermediate or reclamation facility must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (i.e., releases that are not covered by a permit, such as a permit to discharge to water or air), which may include, but are not limited to, potential releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures, and must include consideration of potential cumulative risks from other nearby potential stressors.

5. An applicant may apply to the administrator for a formal determination that a hazardous secondary material is not discarded and therefore not a solid waste (i.e., nonwaste determination). The determinations will be based on the criteria contained in subdivision B 6 or B 7 of this section, as applicable. If an application is denied, the hazardous secondary material might still be eligible for a solid waste variance or exclusion (e.g., one of the solid waste variances under this section). Determinations may also be granted by the director if the state is either authorized for this provision or if the following conditions are met:

a. The director determines the hazardous secondary material meets the criteria in subdivision B 6 or B 7 of this section, as applicable;

b. The state requests that EPA review its determination; and

c. EPA approves the state determination.

6. The director may grant a nonwaste determination for hazardous secondary material that is reclaimed in a continuous industrial process if the applicant demonstrates that the hazardous secondary material is a part of the production process and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43 and on the following criteria:

a. The extent that the management of the hazardous secondary material is part of the continuous primary production process and is not waste treatment;

b. Whether the capacity of the production process would use the hazardous secondary material in a reasonable timeframe and ensure that the hazardous secondary material will not be abandoned (e.g., based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

c. Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water, or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and

d. Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under 40 CFR 261.2 or 40 CFR 261.4.

7. The director may grant a nonwaste determination for hazardous secondary material that is indistinguishable in all relevant aspects from a product or intermediate if the applicant demonstrates that the hazardous secondary material is comparable to a product or intermediate and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43 and on the following criteria:

a. Whether market participants treat the hazardous secondary material as a product or intermediate rather than a waste (e.g., based on the current positive value of the hazardous secondary material, stability of demand, or any contractual arrangements);

b. Whether the chemical and physical identity of the hazardous secondary material is comparable to commercial products or intermediates;

c. Whether the capacity of the market would use the hazardous secondary material in a reasonable timeframe and ensure that the hazardous secondary material will not be abandoned (e.g., based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

d. Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water, or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and

e. Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under 40 CFR 261.2 or 40 CFR 261.4.

A. Procedures for variances to be classified as a boiler. The director will use the following procedures in evaluating applications for variances to classify particular enclosed controlled flame combustion devices as boilers:

1. The applicant must apply to the department for the variance. The application must address the relevant criteria contained in 9VAC20-60-1400.

2. The director will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. The director will issue a final decision after receipt of comments and after the hearing (if any).

2. The director will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement and radio broadcast in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. The director will issue a final decision after receipt of comments and after the hearing (if any), and will publish it in the newspaper in the locality where the applicant is located.

3. In the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria contained in 9VAC20-60-1390 upon which a variance or nonwaste determination has been based, the applicant must send a description of the change in circumstances to the director. The director may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or nonwaste determination or may require the facility to reapply for the variance or nonwaste determination.

4. Variances and nonwaste determinations shall be effective for a fixed term not to exceed 10 years. No later than six months prior to the end of this term, facilities must reapply for a variance or nonwaste determination. If a facility reapplies for a variance or nonwaste determination within six months, the facility may continue to operate under an expired variance or nonwaste determination until receiving a decision on their reapplication from the director.

5. Facilities receiving a variance or nonwaste determination must provide notification as required by 40 CFR 260.42 as incorporated by reference.

C. Changes in management procedures.

1. Recycling activities. In determining whether to regulate recycling activities in a manner differing from procedures described in 40 CFR 261.6(a)(2)(iii), the director will fulfill all the requirements of Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act. In addition to the process required by the APA, the director will:

a. If a generator is accumulating the waste, issue a notice setting forth the factual basis for the decision and stating that the person shall comply with applicable requirements of 9VAC20-60-262. The notice will become final within 30 days, unless the person served requests a public hearing to challenge the decision. Upon receiving such a request, the director will hold a public hearing. The director will provide notice of the hearing to the public and allow public participation at the hearing. The director will issue a final order after the hearing stating whether or not compliance with 9VAC20-60-262 is required. The order becomes effective in 30 days, unless the director specifies a later date or unless review under Article 5 (§ 2.2-4025 et seq.) of the Administrative Process Act is requested.

b. If the person is accumulating the recyclable material at a storage facility, issue a notice stating that the person shall obtain a permit in accordance with all applicable provisions of Part III (9VAC20-60-124 et seq.), 9VAC20-60-270, and Part XII (9VAC20-60-1260 et seq.) of this chapter. The owner or operator of the facility shall apply for a permit within no less than 60 days and no more than six months of notice, as specified in the notice. If the owner or operator of the facility wishes to challenge the director's decision, he may do so in his permit application, in a public hearing held on the draft permit, or in comments filed on the draft permit or on the notice of intent to deny the permit. The fact sheet accompanying the permit will specify the reasons for the director's determination. The questions of whether the director's decision was proper will remain open for consideration during the public comment period discussed under 9VAC20-60-121040 CFR 124.11 and in any subsequent hearing.

2. Variance from secondary containment. The following procedures shall be followed in order to request a variance from secondary containment:

a. The department shall be notified in writing by the owner or operator that he intends to conduct and submit a demonstration for a variance from secondary containment as allowed in 40 CFR 265.193(g), (or 40 CFR 264.195(g)), and 9VAC20-60-1410 B according to the following schedule:

(1) For existing tank systems, at least 24 months prior to the date that secondary containment shall be provided in accordance with 40 CFR 265.193(a) or 40 CFR 264.193(a); and

(2) For new tank systems, at least 30 days prior to entering into a contract for installation of the tank system.

b. As part of the notification, the owner or operator shall also submit to the department a description of the steps necessary to conduct the demonstration and a timetable for completing each of the steps. The demonstration shall address each of the factors listed in 9VAC20-60-1410 B 4 or 9VAC20-60-1410 B 5.

c. The demonstration for a variance shall be completed and submitted to the department within 180 days after notifying the department of intent to conduct the demonstration.

(1) The director will inform the public, through a newspaper notice, of the availability of the demonstration for a variance. The notice shall be placed in a daily or weekly major local newspaper of general circulation and shall provide at least 30 days from the date of the notice for the public to review and comment on the demonstration for a variance. The director also will hold a public hearing, in response to a request or at his own discretion, whenever such a hearing might clarify one or more issues concerning the demonstration for a variance. Public notice of the hearing will be given at least 30 days prior to the date of the hearing and may be given at the same time as notice of the opportunity for the public to review and comment on the demonstration. These two notices may be combined.

(2) The director will approve or disapprove the request for a variance within 90 days of receipt of the demonstration from the owner or operator and will notify in writing the owner or operator and each person who submitted written comments or requested notice of the variance decision. If the demonstration for a variance is incomplete or does not include sufficient information, the 90-day time period will begin when the department receives a complete demonstration, including all information necessary to make a final determination. If the public comment period in subdivision 2 d (1) of this subsection is extended, the 90-day time period will be similarly extended.

e. In case of facilities regulated under 9VAC20-60-264, if a variance is granted to the permittee, the director will require the permittee to construct and operate the tank system in the manner that was demonstrated to meet the requirements for the variance.

VA.R. Doc. No. R16-4568; Filed December 7, 2015, 4:00 p.m.

TITLE 9. ENVIRONMENT

VIRGINIA WASTE MANAGEMENT BOARD

Final Regulation

REGISTRAR'S NOTICE: The following regulatory action is exempt from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 4 c of the Code of Virginia, which excludes regulations that are necessary to meet the requirements of federal law or regulations provided such regulations do not differ materially from those required by federal law or regulation. The Virginia Waste Management Board will receive, consider, and respond to petitions by any interested person at any time with respect to reconsideration or revision.

The federal rule also modified 40 CFR 261.4(b), which identifies materials excluded from being hazardous waste. The Virginia Hazardous Waste Management Regulations incorporate 40 CFR 261.4 by reference. The Virginia Hazardous Waste Management Regulations will be updated as part of a separate rulemaking process to include the revisions made to 40 CFR 261.4(b)(4) (Bevill exclusion).

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Active life" means the period of operation beginning with the initial receipt of solid waste and ending at completion of closure activities required by this chapter.

"Active portion" means that part of a facility or unit that has received or is receiving wastes and that has not been closed in accordance with this chapter.

"Agricultural waste" means all solid waste produced from farming operations.

"Airport" means, for the purpose of this chapter, a military airfield or a public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.

"Aquifer" means a geologic formation, group of formations, or a portion of a formation capable of yielding significant quantities of groundwater to wells or springs.

"Ash" means the fly ash or bottom ash residual waste material produced from incineration or burning of solid waste or from any fuel combustion.

"Base flood" see "Hundred-year flood."

"Bedrock" means the rock that underlies soil or other unconsolidated, superficial material at a site.

"Benchmark" means a permanent monument constructed of concrete and set in the ground surface below the frostline with identifying information clearly affixed to it. Identifying information will include the designation of the benchmark as well as the elevation and coordinates on the local or Virginia state grid system.

"Beneficial use" means a use that is of benefit as a substitute for natural or commercial products and does not contribute to adverse effects on health or environment.

"Beneficial use of CCR" means the CCR meet all of the following conditions:

1. The CCR must provide a functional benefit;

2. The CCR must substitute for the use of a virgin material, conserving natural resources that would otherwise need to be obtained through practices, such as extraction;

3. The use of the CCR must meet relevant product specifications, regulatory standards, or design standards when available, and when such standards are not available, the CCR is not used in excess quantities; and

4. When unencapsulated use of CCR involving placement on the land of 12,400 tons or more in nonroadway applications, the user must demonstrate and keep records, and provide such documentation upon request, that environmental releases to groundwater, surface water, soil, and air are comparable to or lower than those from analogous products made without CCR, or that environmental releases to groundwater, surface water, soil, and air will be at or below relevant regulatory and health-based benchmarks for human and ecological receptors during use.

"Bioremediation" means remediation of contaminated media by the manipulation of biological organisms to enhance the degradation of contaminants.

"Bird hazard" means an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to its occupants.

"Board" means the Virginia Waste Management Board.

"Bottom ash" means ash or slag that has been discharged from the bottom of the combustion unit after combustion.

"Capacity" means the maximum permitted volume of solid waste, inclusive of daily and intermediate cover, that can be disposed in a landfill. This volume is measured in cubic yards.

"Captive industrial landfill" means an industrial landfill that is located on property owned or controlled by the generator of the waste disposed of in that landfill.

"CCR landfill" means an area of land or an excavation that receives CCR and that is not a surface impoundment, an underground injection well, a salt dome formation, a salt bed formation, an underground or surface coal mine, or a cave. For purposes of this chapter, a CCR landfill also includes sand and gravel pits and quarries that receive CCR, CCR piles, and any practice that does not meet the definition of a beneficial use of CCR.

"CCR surface impoundment" means a natural topographic depression, man-made excavation, or diked area that is designed to hold an accumulation of CCR and liquids, and the unit treats, stores, or disposes of CCR.

"Closed facility" means a solid waste management facility that has been properly secured in accordance with the requirements of this chapter.

"Closure" means that point in time when a permitted landfill has been capped, certified as properly closed by a professional engineer, inspected by the department, and closure notification is performed by the department in accordance with 9VAC20-81-160 D.

"Coal combustion byproducts" or "CCB" means residuals, including fly ash, bottom ash, boiler slag, and flue gas emission control waste produced by burning coal. CCB includes both CCR and other non-CCR wastes identified in this definition.

"Commercial waste" means all solid waste generated by establishments engaged in business operations other than manufacturing or construction. This category includes, but is not limited to, solid waste resulting from the operation of stores, markets, office buildings, restaurants, and shopping centers.

"Compliance schedule" means a time schedule for measures to be employed on a solid waste management facility that will ultimately upgrade it to conform to this chapter.

"Compost" means a stabilized organic product produced by a controlled aerobic decomposition process in such a manner that the product can be handled, stored, and/oror applied to the land without adversely affecting public health or the environment.

"Composting" means the manipulation of the natural process of decomposition of organic materials to increase the rate of decomposition.

"Conditionally exempt small quantity generator" means a generator of hazardous waste who has been so defined in 40 CFR 261.5, as amended. That section applies to the persons who generate in that calendar month no more than 100 kilograms of hazardous waste or one kilogram of acutely hazardous waste.

"Construction" means the initiation of permanent physical change at a property with the intent of establishing a solid waste management unit. This does not include land-clearing activities, excavation for borrow purposes, activities intended for infrastructure purposes, or activities necessary to obtain Part A siting approval (i.e., advancing of exploratory borings, digging of test pits, groundwater monitoring well installation, etc.).

"Construction waste" means solid waste that is produced or generated during construction, remodeling, or repair of pavements, houses, commercial buildings, and other structures. Construction wastes include, but are not limited to lumber, wire, sheetrock, broken brick, shingles, glass, pipes, concrete, paving materials, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos, any liquid, compressed gases or semi-liquids and garbage are not construction wastes.

"Contaminated soil" means, for the purposes of this chapter, a soil that, as a result of a release or human usage, has absorbed or adsorbed physical, chemical, or radiological substances at concentrations above those consistent with nearby undisturbed soil or natural earth materials.

"Container" means any portable device in which a material is stored, transported, treated, or otherwise handled and includes transport vehicles that are containers themselves (e.g., tank trucks) and containers placed on or in a transport vehicle.

"Containment structure" means a closed vessel such as a tank or cylinder.

"Convenience center" means a collection point for the temporary storage of solid waste provided for individual solid waste generators who choose to transport solid waste generated on their own premises to an established centralized point, rather than directly to a disposal facility. To be classified as a convenience center, the collection point may not receive waste from collection vehicles that have collected waste from more than one real property owner. A convenience center shall be on a system of regularly scheduled collections.

"Cover material" means compactable soil or other approved material that is used to blanket solid waste in a landfill.

"Daily disposal limit" means the amount of solid waste that is permitted to be disposed at the facility and shall be computed on the amount of waste disposed during any operating day.

"Decomposed vegetative waste" means a stabilized organic product produced from vegetative waste by a controlled natural decay process in such a manner that the product can be handled, stored, or applied to the land without adversely affecting public health or the environment.

"Demolition waste" means that solid waste that is produced by the destruction of structures and their foundations and includes the same materials as construction wastes.

"Department" means the Virginia Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality. For purposes of submissions to the director as specified in the Waste Management Act, submissions may be made to the department.

"Discard" means to abandon, dispose of, burn, incinerate, accumulate, store, or treat before or instead of being abandoned, disposed of, burned, or incinerated.

"Discarded material" means a material that is:

1. Abandoned by being:

a. Disposed of;

b. Burned or incinerated; or

c. Accumulated, stored, or treated (but not used, reused, or reclaimed) before or in lieu of being abandoned by being disposed of, burned, or incinerated; or

2. Recycled used, reused, or reclaimed material as defined in this part.

"Disclosure statement" means a sworn statement or affirmation as required by § 10.1-1400 of the Code of Virginia. (see DEQ Form DISC-01 and 02 (Disclosure Statement)).

"Displacement" means the relative movement of any two sides of a fault measured in any direction.

"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste into or on any land or water so that such solid waste or any constituent of it may enter the environment or be emitted into the air or discharged into any waters.

"Disposal unit boundary" or "DUB" means the vertical plane located at the edge of the waste disposal unit. This vertical plane extends down into the uppermost aquifer. The DUB must be positioned within or coincident to the waste management boundary.

"EPA" means the United StatesU.S. Environmental Protection Agency.

"Exempt management facility" means a site used for activities that are conditionally exempt from management as a solid waste under this chapter. The facility remains exempt from solid waste management requirements provided it complies with the applicable conditions set forth in Parts II (9VAC20-81-20 et seq.) and IV (9VAC20-81-300 et seq.) of this chapter.

"Existing CCR landfill" means a CCR landfill that receives CCR both before and after October 19, 2015, or for which construction commenced prior to October 19, 2015, and receives CCR on or after October 19, 2015. A CCR landfill has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous onsite, physical construction program had begun prior to October 19, 2015.

"Existing CCR surface impoundment" means a CCR surface impoundment that receives CCR both before and after October 19, 2015, or for which construction commenced prior to October 19, 2015, and receives CCR on or after October 19, 2015. A CCR surface impoundment has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous onsite, physical construction program had begun prior to October 19, 2015.

"Expansion" means a horizontal expansion of the waste management boundary as identified in the Part A application. If a facility's permit was issued prior to the establishment of the Part A process, an expansion is a horizontal expansion of the disposal unit boundary.

"Facility boundary" means the boundary of the solid waste management facility. For landfills, this boundary encompasses the waste management boundary and all ancillary activities including, but not limited to scales, groundwater monitoring wells, gas monitoring probes, and maintenance facilities as identified in the facility's permit application. For facilities with a permit-by-rule (PBR) the facility boundary is the boundary of the property where the permit-by-rule activity occurs. For unpermitted solid waste management facilities, the facility boundary is the boundary of the property line where the solid waste is located.

"Facility structure" means any building, shed, or utility or drainage line on the facility.

"Fault" means a fracture or a zone of fractures in any material along which strata on one side have been displaced with respect to that on the other side.

"Gas condensate" means the liquid generated as a result of gas control or recovery processes at the solid waste management facility.

"Governmental unit" means any department, institution, or commission of the Commonwealth and any public corporate instrumentality thereof, and any district, and shall include local governments.

"Ground rubber" means material processed from waste tires that is no larger than 1/4 inch in any dimension. This includes crumb rubber that is measured in mesh sizes.

"Groundwater" means water below the land surface in a zone of saturation.

"Hazardous constituent" means a constituent of solid waste found listed in Appendix VIII of 9VAC20-60-261.

"Hazardous waste" means a "hazardous waste" as described by the Virginia Hazardous Waste Management Regulations (9VAC20-60).

"Holocene" means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene Epoch to the present.

"Home use" means the use of compost for growing plants that is produced and used on a privately owned residential site.

"Host agreement" means any lease, contract, agreement, or land use permit entered into or issued by the locality in which the landfill is situated that includes terms or conditions governing the operation of the landfill.

"Household hazardous waste" means any waste material derived from households (including single and multiple residences, hotels, motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas) which, except for the fact that it is derived from a household, would otherwise be classified as a hazardous waste in accordance with 9VAC20-60.

"Household waste" means any waste material, including garbage, trash, and refuse, derived from households. Households include single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas. Household wastes do not include sanitary waste in septic tanks (septage) that is regulated by other state agencies.

"Hundred-year flood" means a flood that has a 1.0% or greater chance of recurring in any given year or a flood of magnitude equaled or exceeded on the average only once in a hundred years on the average over a significantly long period.

"Inactive CCR surface impoundment" means a CCR surface impoundment that no longer receives CCR on or after October 19, 2015, and still contains both CCR and liquids on or after October 19, 2015.

"Incineration" means the controlled combustion of solid waste for disposal.

"Incinerator" means a facility or device designed for the treatment of solid waste by combustion.

"Industrial waste" means any solid waste generated by manufacturing or industrial process that is not a regulated hazardous waste. Such waste may include, but is not limited to, waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products/byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

"Industrial waste landfill" means a solid waste landfill used primarily for the disposal of a specific industrial waste or a waste that is a byproduct of a production process.

"Injection well" means, for the purposes of this chapter, a well or bore hole into which fluids are injected into selected geological horizons.

"Institutional waste" means all solid waste emanating from institutions such as, but not limited to, hospitals, nursing homes, orphanages, and public or private schools. It can include regulated medical waste from health care facilities and research facilities that must be managed as a regulated medical waste.

"Interim cover systems" means temporary cover systems applied to a landfill area when landfilling operations will be temporarily suspended for an extended period (typically, longer than one year). At the conclusion of the interim period, the interim cover system may be removed and landfilling operations resume or final cover is installed.

"Karst topography" means areas where karst terrane, with its characteristic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terranes include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys.

"Key personnel" means the applicant itself and any person employed by the applicant in a managerial capacity, or empowered to make discretionary decisions, with respect to the solid waste or hazardous waste operations of the applicant in Virginia, but shall not include employees exclusively engaged in the physical or mechanical collection, transportation, treatment, storage, or disposal of solid or hazardous waste and such other employees as the director may designate by regulation. If the applicant has not previously conducted solid waste or hazardous waste operations in Virginia, the term also includes any officer, director, partner of the applicant, or any holder of 5.0% or more of the equity or debt of the applicant. If any holder of 5.0% or more of the equity or debt of the applicant or of any key personnel is not a natural person, the term includes all key personnel of that entity, provided that where such entity is a chartered lending institution or a reporting company under the Federal Security and Exchange Act of 1934, the term does not include key personnel of such entity. Provided further that the term means the chief executive officer of any agency of the United States or of any agency or political subdivision of the Commonwealth, and all key personnel of any person, other than a natural person, that operates a landfill or other facility for the disposal, treatment, or storage of nonhazardous solid waste under contract with or for one of those governmental entities.

"Lagoon" means a body of water or surface impoundment designed to manage or treat waste water.

"Land-clearing activities" means the removal of flora from a parcel of land.

"Landfill" means a sanitary landfill, an industrial waste landfill, or a construction/demolition/debris landfill.

"Landfill gas" means gas generated as a byproduct of the decomposition of organic materials in a landfill. Landfill gas consists primarily of methane and carbon dioxide.

"Landfill mining" means the process of excavating solid waste from an existing landfill.

"Leachate" means a liquid that has passed through or emerged from solid waste and contains soluble, suspended, or miscible materials from such waste. Leachate and any material with which it is mixed is solid waste; except that leachate that is pumped from a collection tank for transportation to disposal in an off-siteoffsite facility is regulated as septage, leachate discharged into a waste water collection system is regulated as industrial waste water and leachate that has contaminated groundwater is regulated as contaminated groundwater.

"Lead acid battery" means, for the purposes of this chapter, any wet cell battery.

"Liquid waste" means any waste material that is determined to contain "free liquids" as defined by this chapter.

"Lithified earth material" means all rock, including all naturally occurring and naturally formed aggregates or masses of minerals or small particles of older rock, that formed by crystallization of magma or by induration of loose sediments. This term does not include manmademan-made materials, such as fill, concrete, and asphalt, or unconsolidated earth materials, soil, or regolith lying at or near the earth's surface.

"Litter" means, for purposes of this chapter, any solid waste that is discarded or scattered about a solid waste management facility outside the immediate working area.

"Lower explosive limit" means the lowest concentration by volume of a mixture of explosive gases in air that will propagate a flame at 25°C and at atmospheric pressure.

"Materials recovery facility" means a solid waste management facility for the collection, processing, and recovery of material such as metals from solid waste or for the production of a fuel from solid waste. This does not include the production of a waste-derived fuel product.

"Maximum horizontal acceleration in lithified earth material" means the maximum expected horizontal acceleration depicted on a seismic hazard map, with a 90% or greater probability that the acceleration will not be exceeded in 250 years, or the maximum expected horizontal acceleration based on a site-specific seismic risk assessment.

"Monitoring" means all methods, procedures, and techniques used to systematically analyze, inspect, and collect data on operational parameters of the facility or on the quality of air, groundwater, surface water, and soils.

"Monitoring well" means a well point below the ground surface for the purpose of obtaining periodic water samples from groundwater for quantitative and qualitative analysis.

"Mulch" means woody waste consisting of stumps, trees, limbs, branches, bark, leaves and other clean wood waste that has undergone size reduction by grinding, shredding, or chipping, and is distributed to the general public for landscaping purposes or other horticultural uses except composting as defined and regulated under this chapter.

"Municipal solid waste" means that waste that is normally composed of residential, commercial, and institutional solid waste and residues derived from combustion of these wastes.

"New CCR landfill" means a CCR landfill or lateral expansion of a CCR landfill that first receives CCR or commences construction after October 19, 2015. A new CCR landfill has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous onsite, physical construction program had begun after October 19, 2015. Overfills are also considered new CCR landfills.

"New CCR surface impoundment" means a CCR surface impoundment or lateral expansion of an existing or new CCR surface impoundment that first receives CCR or commences construction after October 19, 2015. A new CCR surface impoundment has commenced construction if the owner or operator has obtained the federal, state, and local approvals or permits necessary to begin physical construction and a continuous onsite, physical construction program had begun after October 19, 2015.

"New solid waste management facility" means a facility or a portion of a facility that was not included in a previous determination of site suitability (Part A approval).

"Nuisance" means an activity that unreasonably interferes with an individual's or the public's comfort, convenience or enjoyment such that it interferes with the rights of others by causing damage, annoyance, or inconvenience.

"Offsite" means any site that does not meet the definition of onsite as defined in this part.

"Onsite" means the same or geographically contiguous property, which may be divided by public or private right-of-way, provided the entrance and exit to the facility are controlled by the owner or the operator of the facility. Noncontiguous properties owned by the same person, but connected by a right-of-way that he controls and to which the public does not have access, are also considered onsite property.

"Open burning" means the combustion of solid waste without:

1. Control of combustion air to maintain adequate temperature for efficient combustion;

2. Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

3. Control of the combustion products' emission.

"Open dump" means a site on which any solid waste is placed, discharged, deposited, injected, dumped, or spilled so as to present a threat of a release of harmful substances into the environment or present a hazard to human health. Such a site is subject to the Open Dump Criteria in 9VAC20-81-45.

"Operating record" means records required to be maintained in accordance with the facility permit or this part (see 9VAC20-81-530).

"Operation" means all waste management activities at a solid waste management facility beginning with the initial receipt of solid waste for treatment, storage, disposal, or transfer and ceasing with the initiation of final closure activities at the solid waste management facility subsequent to the final receipt of waste.

"Operator" means the person responsible for the overall operation and site management of a solid waste management facility.

"Owner" means the person who owns a solid waste management facility or part of a solid waste management facility.

"PCB" means any chemical substance that is limited to the biphenyl molecule that has been chlorinated to varying degrees or any combination of substances that contain such substance (see 40 CFR 761.3, as amended).

"Perennial stream" means a well-defined channel that contains water year round during a year of normal rainfall. Generally, the water table is located above the streambed for most of the year and groundwater is the primary source for stream flow. A perennial stream exhibits the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water.

"Permit" means the written permission of the director to own, operate, or construct a solid waste management facility.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Point source" means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, vessel, or other floating craft, from which pollutants are or may be discharged. Return flows from irrigated agriculture are not included.

"Pollutant" means any substance that causes or contributes to, or may cause or contribute to, environmental degradation when discharged into the environment.

"Poor foundation conditions" means those areas where features exist that indicate that a natural or man-induced event may result in inadequate foundation support for the structural components of a solid waste management facility.

"Postclosure" means the requirements placed upon solid waste disposal facilities after closure to ensure environmental and public health safety for a specified number of years after closure.

"Process rate" means the maximum rate of waste acceptance that a solid waste management facility can process for treatment and/orand storage. This rate is limited by the capabilities of equipment, personnel, and infrastructure.

"Processing" means preparation, treatment, or conversion of waste by a series of actions, changes, or functions that bring about a desired end result.

"Professional engineer" means an engineer licensed to practice engineering in the Commonwealth as defined by the rules and regulations set forth by the Board offor Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects (18VAC10-20).

"Professional geologist" means a geologist licensed to practice geology in the Commonwealth as defined by the rules and regulations set forth by the Board for Geology (18VAC70-20)Professional Soil Scientists, Wetland Professionals, and Geologists (18VAC145-40).

"Progressive cover" means cover material placed over the working face of a solid waste disposal facility advancing over the deposited waste as new wastes are added keeping the exposed area to a minimum.

"Qualified groundwater scientist" means a scientist or engineer who has received a baccalaureate or postgraduate degree in the natural sciences or engineering and has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by professional certifications, or completion of accredited university programs that enable that individual to make sound professional judgments regarding groundwater monitoring, contaminant fate and transport, and corrective action.

"RCRA" means the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 USC § 6901 et seq.), the Hazardous and Solid Waste Amendments of 1984, and any other applicable amendments to these laws.

"Reclaimed material" means a material that is processed or reprocessed to recover a usable product or is regenerated to a usable form.

"Refuse" means all solid waste products having the character of solids rather than liquids and that are composed wholly or partially of materials such as garbage, trash, rubbish, litter, residues from clean up of spills or contamination, or other discarded materials.

"Refuse-derived fuel (RDF)" means a type of municipal solid waste produced by processing municipal solid waste through shredding and size classification. This includes all classes of refuse-derived fuel including low-density fluff refuse-derived fuel through densified refuse-derived fuel and pelletized refuse-derived fuel.

"Regulated hazardous waste" means a solid waste that is a hazardous waste, as defined in the Virginia Hazardous Waste Management Regulations (9VAC20-60), that is not excluded from those regulations as a hazardous waste.

"Release" means, for the purpose of this chapter, any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injection, escaping, leaching, dumping, or disposing into the environment solid wastes or hazardous constituents of solid wastes (including the abandonment or discarding of barrels, containers, and other closed receptacles containing solid waste). This definition does not include any release that results in exposure to persons solely within a workplace; release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 (68 Stat. 923); and the normal application of fertilizer. For the purpose of this chapter, release also means substantial threat of release.

"Remediation waste" means all solid waste, including all media (groundwater, surface water, soils, and sediments) and debris, that are managed for the purpose of remediating a site in accordance with 9VAC20-81-45 or Part III (9VAC20-81-100 et seq.) of this chapter or under the Voluntary Remediation Regulations (9VAC20-160) or other regulated remediation program under DEQ oversight. For a given facility, remediation wastes may originate only from within the boundary of that facility, and may include wastes managed as a result of remediation beyond the boundary of the facility. Hazardous wastes as defined in 9VAC20-60, as well as "new" or "as generated" wastes, are excluded from this definition.

"Remediation waste management unit" or "RWMU" means an area within a facility that is designated by the director for the purpose of implementing remedial activities required under this chapter or otherwise approved by the director. An RWMU shall only be used for the management of remediation wastes pursuant to implementing such remedial activities at the facility.

"Responsible official" means one of the following:

1. For a business entity, such as a corporation, association, limited liability company, or cooperative: a duly authorized representative of such business entity if the representative is responsible for the overall operation of one or more operating facilities applying for or subject to a permit. The authority to sign documents must be assigned or delegated to such representative in accordance with procedures of the business entity;

2. For a partnership or sole proprietorship: a general partner or the proprietor, respectively; or

3. For a municipality, state, federal, or other public agency: a duly authorized representative of the locality if the representative is responsible for the overall operation of one or more operating facilities applying for or subject to a permit. The authority to sign documents must be assigned or delegated to such representative in accordance with procedures of the locality.

"Rubbish" means combustible or slowly putrescible discarded materials that include but are not limited to trees, wood, leaves, trimmings from shrubs or trees, printed matter, plastic and paper products, grass, rags and other combustible or slowly putrescible materials not included under the term "garbage."

"Runoff" means any rainwater, leachate, or other liquid that drains over land from any part of a solid waste management facility.

"Run-on" means any rainwater, wastewater, leachate, or other liquid that drains over land onto any part of the solid waste management facility.

"Sanitary landfill" means an engineered land burial facility for the disposal of household waste that is so located, designed, constructed, and operated to contain and isolate the waste so that it does not pose a substantial present or potential hazard to human health or the environment. A sanitary landfill also may receive other types of solid wastes, such as commercial solid waste, nonhazardous sludge, hazardous waste from conditionally exempt small quantity generators, construction demolition debris, and nonhazardous industrial solid waste.

"Saturated zone" means that part of the earth's crust in which all voids are filled with water.

"Scavenging" means the unauthorized or uncontrolled removal of waste materials from a solid waste management facility.

"Scrap metal" means metal parts such as bars, rods, wire, empty containers, or metal pieces that are discarded material and can be used, reused, or reclaimed.

"Secondary containment" means an enclosure into which a container or tank is placed for the purpose of preventing discharge of wastes to the environment.

"Seismic impact zone" means an area with a 10% or greater probability that the maximum horizontal acceleration in lithified earth material, expressed as a percentage of the earth's gravitational pull (g), will exceed 0.10g in 250 years.

"Semiannual" means an interval corresponding to approximately 180 days. For the purposes of scheduling monitoring activities, sampling within 30 days of the 180-day interval will be considered semiannual.

"Site" means all land and structures, other appurtenances, and improvements on them used for treating, storing, and disposing of solid waste. This term includes adjacent land within the facility boundary used for the utility systems such as repair, storage, shipping or processing areas, or other areas incident to the management of solid waste.

"Sludge" means any solid, semi-solid or liquid waste generated from a municipal, commercial or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of treated effluent from a wastewater treatment plant.

"Small landfill" means a landfill that disposed of 100 tons/day or less of solid waste during a representative period prior to October 9, 1993, and did not dispose of more than an average of 100 tons/day of solid waste each month between October 9, 1993, and April 9, 1994.

"Solid waste" means any of those materials defined as "solid waste" in 9VAC20-81-95.

"Solid waste management facility" or "SWMF" means a site used for planned treating, storing, or disposing of solid waste. A facility may consist of several treatment, storage, or disposal units.

"Special wastes" means solid wastes that are difficult to handle, require special precautions because of hazardous properties, or the nature of the waste creates waste management problems in normal operations. (See Part VI (9VAC20-81-610 et seq.) of this chapter.)

"Speculatively accumulated material" means any material that is accumulated before being used, reused, or reclaimed or in anticipation of potential use, reuse, or reclamation. Materials are not being accumulated speculatively when they can be used, reused, or reclaimed, have a feasible means of use, reuse, or reclamation available and 75% of the materials accumulated are being removed from the facility annually.

"State waters" means all water, on the surface and under the ground, wholly or partially within, or bordering the Commonwealth, or within its jurisdiction.

"Storage" means the holding of waste, at the end of which the waste is treated, disposed, or stored elsewhere.

"Structural fill" means an engineered fill with a projected beneficial end use, constructed using soil or fossil fuel combustion products, when done in accordance with this chapter, spread and compacted with proper equipment, and covered with a vegetated soil cap.

"Sudden event" means a one-time, single event such as a sudden collapse or a sudden, quick release of contaminants to the environment. An example would be the sudden loss of leachate from an impoundment into a surface stream caused by failure of a containment structure.

"Surface impoundment" or "impoundment" means a facility or part of a facility that is a natural topographic depression, manmademan-made excavation, or diked area formed primarily of earthen materials (although it may be lined with manmademan-made materials), that is designed to hold an accumulation of liquid wastes or wastes containing free liquids and that is not an injection well.

"Surface waters" means all state waters that are not groundwater as defined in § 62.1-255 of the Code of Virginia.

"Tank" means a stationary device, designed to contain an accumulation of liquid or semi-liquid components of solid waste that is constructed primarily of nonearthen materials that provide structural support.

"TEF" or "Toxicity Equivalency Factor" means a factor developed to account for different toxicities of structural isomers of polychlorinated dibenzodioxins and dibenzofurans and to relate them to the toxicity of 2,3,7,8-tetrachloro dibenzo-p-dioxin.

"Terminal" means the location of transportation facilities such as classification yards, docks, airports, management offices, storage sheds, and freight or passenger stations, where solid waste that is being transported may be loaded, unloaded, transferred, or temporarily stored.

"Thermal treatment" means the treatment of solid waste in a device that uses elevated temperature as the primary means to change the chemical, physical, or biological character, or composition of the solid waste.

"Tire chip" means a material processed from waste tires that is a nominal two square inches in size, and ranges from 1/4 inch to four inches in any dimension. Tire chips contain no wire protruding more than 1/4 inch.

"Tire shred" means a material processed from waste tires that is a nominal 40 square inches in size, and ranges from 4four inches to 10 inches in any dimension.

"Transfer station" means any solid waste storage or collection facility at which solid waste is transferred from collection vehicles to haulage vehicles for transportation to a central solid waste management facility for disposal, incineration, or resource recovery.

"Trash" means combustible and noncombustible discarded materials and is used interchangeably with the term rubbish.

"Treatment" means, for the purpose of this chapter, any method, technique, or process, including but not limited to incineration, designed to change the physical, chemical, or biological character or composition of any waste to render it more stable, safer for transport, or more amenable to use, reuse, reclamation, recovery, or disposal.

"Underground source of drinking water" means an aquifer or its portion:

1. Which contains water suitable for human consumption; or

2. In which the groundwater contains less than 10,000 mg/liter total dissolved solids.

"Unit" means a discrete area of land used for the disposal of solid waste.

"Unstable area" means a location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and karst terranes.

"Uppermost aquifer" means the geologic formation nearest the natural ground surface that is an aquifer, as well as, lower aquifers that are hydraulically interconnected with this aquifer within the facility boundary.

"Used or reused material" means a material that is either:

1. Employed as an ingredient (including use as an intermediate) in a process to make a product, excepting those materials possessing distinct components that are recovered as separate end products; or

2. Employed in a particular function or application as an effective substitute for a commercial product or natural resources.

"Vector" means a living animal, insect, or other arthropod that transmits an infectious disease from one organism to another.

"Vermicomposting" means the controlled and managed process by which live worms convert organic residues into fertile excrement.

"Vertical design capacity" means the maximum design elevation specified in the facility's permit or if none is specified in the permit, the maximum elevation based on a 3:1 slope from the waste disposal unit boundary.

"VPDES" (Virginia Pollutant Discharge Elimination System) means the Virginia system for the issuance of permits pursuant to the Permit Regulation (9VAC25-31), the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia), and § 402 of the Clean Water Act (33 USC § 1251 et seq.).

"Washout" means carrying away of solid waste by waters of the base flood.

"Waste-derived fuel product" means a solid waste or combination of solid wastes that have been treated (altered physically, chemically, or biologically) to produce a fuel product with a minimum heating value of 5,000 BTU/lb. Solid wastes used to produce a waste-derived fuel product must have a heating value, or act as binders, and may not be added to the fuel for the purpose of disposal. Waste ingredients may not be listed or characteristic hazardous wastes. The fuel product must be stable at ambient temperature, and not degraded by exposure to the elements. This material may not be "refuse derived fuel (RDF)" as defined in 9VAC5-40-890.

"Waste management boundary" means the vertical plane located at the boundary line of the area approved in the Part A application for the disposal of solid waste and storage of leachate. This vertical plane extends down into the uppermost aquifer and is within the facility boundary.

"Waste pile" means any noncontainerized accumulation of nonflowing, solid waste that is used for treatment or storage.

"Waste tire" means a tire that has been discarded because it is no longer suitable for its original intended purpose because of wear, damage or defect. (See 9VAC20-150 for other definitions dealing with the waste tire program.)

"Wastewaters" means, for the purpose of this chapter, wastes that contain less than 1.0% by weight total organic carbon (TOC) and less than 1.0% by weight total suspended solids (TSS).

"Water pollution" means such alteration of the physical, chemical, or biological properties of any state water as will or is likely to create a nuisance or render such waters:

1. Harmful or detrimental or injurious to the public health, safety, or welfare, or to the health of animals, fish, or aquatic life or plants;

2. Unsuitable, with reasonable treatment, for use as present or possible future sources of public water supply; or

a. An alteration of the physical, chemical, or biological properties of state waters or a discharge or deposit of sewage, industrial wastes, or other wastes to state waters by any owner that by itself is not sufficient to cause pollution but which in combination with such alteration or discharge or deposit to state waters by other persons is sufficient to cause pollution;

b. The discharge of untreated sewage by any person into state waters; and

c. The contribution to the degradation of water quality standards duly established by the State Water Control Board, are "pollution" for the terms and purposes of this chapter.

"Water table" means the upper surface of the zone of saturation in groundwaters in which the hydrostatic pressure is equal to the atmospheric pressure.

"Waters of the United States" or "waters of the U.S." means:

1. All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide;

A. This chapter applies to all persons who treat, store, dispose, or otherwise manage solid wastes as defined in 9VAC20-81-95.

B. All facilities that were permitted prior to March 15, 1993, and upon which solid waste has been disposed of prior to October 9, 1993, may continue to receive solid waste until they have reached their vertical design capacity or until the closure date established pursuant to § 10.1-1413.2 of the Code of Virginia, in Table 2.1 provided:

1. The facility is in compliance with the requirements for liners and leachate control in effect at the time of permit issuance.

2. On or before October 9, 1993, the owner or operator of the solid waste management facility submitted to the director:

a. An acknowledgment that the owner or operator is familiar with state and federal law and regulations pertaining to solid waste management facilities operating after October 9, 1993, including postclosure care, corrective action, and financial responsibility requirements;

b. A statement signed by a professional engineer that he has reviewed the regulations established by the department for solid waste management facilities, including the open dump criteria contained therein, that he has inspected the facility and examined the monitoring data compiled for the facility in accordance with applicable regulations and that, on the basis of his inspection and review, he has concluded:

(1) That the facility is not an open dump;

(2) That the facility does not pose a substantial present or potential hazard to human health and the environment; and

(3) That the leachate or residues from the facility do not pose a threat of contamination or pollution of the air, surface water, or groundwater in a manner constituting an open dump or resulting in a substantial present or potential hazard to human health or the environment; and

c. A statement signed by the owner or operator:

(1) That the facility complies with applicable financial assurance regulations; and

(2) Estimating when the facility will reach its vertical design capacity.

3. Enlargement or closure of these facilities shall conform with the following subconditions:

a. The facility may not be enlarged prematurely to avoid compliance with this chapter when such enlargement is not consistent with past operating practices, the permit, or modified operating practices to ensure good management.

b. The facility shall not dispose of solid waste in any portion of a landfill disposal area that has received final cover or has not received waste for a period of one year, in accordance with 9VAC20-81-160 C. The facility shall notify the department, in writing, within 30 days, when an area has received final cover or has not received waste for a one-year period, in accordance with 9VAC20-81-160 C. However, a facility may apply for a permit, and if approved, can construct and operate a new cell that overlays ("piggybacks") over a closed area in accordance with the permit requirements of this chapter.

c. The facilities subject to the restrictions in this subsection are listed in Table 2.1. The closure dates were established in: Final Prioritization and Closure Schedule for HB 1205 Disposal Areas (DEQ, September 2001). The publication of these tables is for the convenience of the regulated community and does not change established dates. Any facility, including, but not limited to those listed in Table 2.1, must cease operation if that facility meets any of the open dump criteria listed in 9VAC20-81-45 A 1.

d. Those facilities assigned a closure date in accordance with § 10.1-1413.2 of the Code of Virginia shall designate on a map, plat, diagram, or other engineered drawing, areas in which waste will be disposed of in accordance with Table 2.1 until the latest cessation of waste acceptance date as listed in Table 2.1 is achieved. This map or plat shall be placed in the operating record and a copy shall be submitted upon request to the department in order to track the progress of closure of these facilities. If the facility already has provided this information under 9VAC20-81-160, then the facility may refer to that information.

2This date means the latest date that the disposal area must cease accepting waste.3A portion of these facilities operated under HB 1205 and another portion currently is compliant with Subtitle D requirements.

C. Facilities are authorized to expand beyond the waste boundaries existing on October 9, 1993, as follows:

1. Existing captive industrial landfills.

a. Existing nonhazardous industrial waste facilities that are located on property owned or controlled by the generator of the waste disposed of in the facility shall comply with all the provisions of this chapter except as shown in subdivision 1 of this subsection.

b. Facility owners or operators shall not be required to modify their facility permit in order to expand a captive industrial landfill beyond the waste boundaries existing on October 9, 1993. Liners and leachate collection systems constructed beyond the waste boundaries existing on October 9, 1993, shall be constructed in accordance with the requirements in effect at the time of permit issuance.

c. Owners or operators of facilities that are authorized under subdivision 1 of this subsection to accept waste for disposal beyond the waste boundaries existing on October 9, 1993, shall ensure that such expanded disposal areas maintain setback distances applicable to such facilities in 9VAC20-81-120.

d. Facilities authorized for expansion in accordance with subdivision 1 of this subsection are limited to expansion to the limits of the permitted disposal area existing on October 9, 1993, or the facility boundary existing on October 9, 1993, if no discrete disposal area is defined in the facility permit.

2. Other existing industrial waste landfills.

a. Existing nonhazardous industrial waste facilities that are not located on property owned or controlled by the generator of the waste disposed of in the facility shall comply with all the provisions of this chapter except as shown in subdivision 2 of this subsection.

b. Facility owners or operators shall not be required to modify their facility permit in order to expand an industrial landfill beyond the waste boundaries existing on October 9, 1993. Liners and leachate collection systems constructed beyond the waste boundaries existing on October 9, 1993, shall be constructed in accordance with the requirements of 9VAC20-81-130.

c. Prior to the expansion of any such facility, the owner or operator shall submit to the department a written notice of the proposed expansion at least 60 days prior to commencement of construction. The notice shall include recent groundwater monitoring data sufficient to determine that the facility does not pose a threat of contamination of groundwater in a manner constituting an open dump or creating a substantial present or potential hazard to human health or the environment (see 9VAC20-81-45). The director shall evaluate the data included with the notification and may advise the owner or operator of any additional requirements that may be necessary to ensure compliance with applicable laws and prevent a substantial present or potential hazard to health or the environment.

d. Owners or operators of facilities which are authorized under subdivision 2 of this subsection to accept waste for disposal beyond the waste boundaries existing on October 9, 1993, shall ensure that such expanded disposal areas maintain setback distances applicable to such facilities in 9VAC20-81-120 and 9VAC20-81-130.

e. Facilities authorized for expansion in accordance with subdivision 2 of this subsection are limited to expansion to the limits of the permitted disposal area existing on October 9, 1993, or the facility boundary existing on October 9, 1993, if no discrete disposal area is defined in the facility permit.

3. Existing construction/demolition/debris landfills.

a. Existing facilities that accept only construction/demolition/debris waste shall comply with all the provisions of this chapter except as shown in subdivision 3 of this subsection.

b. Facility owners or operators shall not be required to modify their facility permit in order to expand a construction/demolition/debris landfill beyond the waste boundaries existing on October 9, 1993. Liners and leachate collection systems constructed beyond the waste boundaries existing on October 9, 1993, shall be constructed in accordance with the requirements of 9VAC20-81-130.

c. Prior to the expansion of any such facility, the owner or operator shall submit to the department a written notice of the proposed expansion at least 60 days prior to commencement of construction. The notice shall include recent groundwater monitoring data sufficient to determine that the facility does not pose a threat of contamination of groundwater in a manner constituting an open dump or creating a substantial present or potential hazard to human health or the environment (see 9VAC20-81-45). The director shall evaluate the data included with the notification and may advise the owner or operator of any additional requirements that may be necessary to ensure compliance with applicable laws and prevent a substantial present or potential hazard to health or the environment.

d. Owners or operators of facilities which are authorized under subdivision 3 of this subsection to accept waste for disposal beyond the active portion of the landfill existing on October 9, 1993, shall ensure that such expanded disposal areas maintain setback distances applicable to such facilities in 9VAC20-81-120 and 9VAC20-81-130.

e. Facilities, or portions thereof, which have reached their vertical design capacity shall be closed in compliance with 9VAC20-81-160.

f. Facilities authorized for expansion in accordance with subdivision 3 of this subsection are limited to expansion to the permitted disposal area existing on October 9, 1993, or the facility boundary existing on October 9, 1993, if no discrete disposal area is defined in the facility permit.

4. Facilities or units undergoing expansion in accordance with the partial exemptions created by subdivision 1 b, 2 b, or 3 b of this subsection may not receive hazardous wastes generated by the exempt small quantity generators, as defined by the Virginia Hazardous Waste Management Regulations (9VAC20-60), for disposal on the expanded portions of the facility. Other wastes that require special handling in accordance with the requirements of Part VI (9VAC20-81-610 et seq.) of this chapter or that contain hazardous constituents that would pose a risk to health or environment, may only be accepted with specific approval by the director.

5. Nothing in subdivisions 1 b, 2 b, and 3 b of this subsection shall alter any requirement for ground watergroundwater monitoring, financial responsibility, operator certification, closure, postclosure care, operation, maintenance, or corrective action imposed under this chapter, or impair the powers of the director to revoke or modify a permit pursuant to § 10.1-1409 of the Virginia Waste Management Act or Part V (9VAC20-81-400 et seq.) of this chapter.

D. An owner or operator of a previously unpermitted facility or unpermitted activity that managed materials previously exempt or excluded from this chapter shall submit a complete application for a solid waste management facility permit, permit by rule or a permit modification, as applicable, in accordance with Part V (9VAC20-81-430(9VAC20-81-400 et seq.) of this chapter within six months after these materials have been defined or identified as solid wastes. If the director finds that the application is complete, the owner or operator may continue to manage the newly defined or identified waste until a permit or permit modification decision has been rendered or until a date two years after the change in definition whichever occurs sooner, provided however, that in so doing he shall not operate or maintain an open dump, a hazard, or a nuisance.

Owners or operators of solid waste management facilities in existence prior to September 24, 2003, shall now be in compliance with this chapter. Where conflicts exist between the existing facility permit and the new requirements of the regulations, the regulations shall supersede the permit except where the standards in the permit are more stringent than the regulation. Language in an existing permit shall not act as a shield to compliance with the regulation, unless a variance to the regulations has been approved by the director in accordance with the provisions of Part VII (9VAC20-81-700 et seq.) of this chapter. Existing facility permits will not be required to be updated to eliminate requirements conflicting with the regulation, except at the request of the director or if a permit is modified for another reason. However, all sanitary landfills and incinerators that accept waste from jurisdictions outside of Virginia must have submitted the materials required under 9VAC20-81-100 E 4 by March 22, 2004.

E. This chapter is not applicable to landfill units closed in accordance with regulations or permits in effect prior to December 21, 1988, unless releases from these closed landfills meet the open dump criteria found in 9VAC20-81-45, or the closed landfills are found to be a hazard or a nuisance under subdivision 21 of § 10.1-1402 of the Code of Virginia, or a site where improper waste management has occurred under subdivision 19 of § 10.1-1402 of the Code of Virginia.

F. Part VIII (9VAC20-81-800 et seq.) of this chapter applies to the following:

1. Owners and operators of new and existing CCR landfills and CCR surface impoundments, including any lateral expansions of such units that dispose or otherwise engage in solid waste management of CCR generated from the combustion of coal at electric utilities and independent power producers;

2. Disposal units located offsite of the electric utility or independent power producer. Part VIII of this chapter also applies to any practice that does not meet the definition of a beneficial use of CCR; and

3. Inactive CCR surface impoundments at active electric utilities or independent power producers, regardless of the fuel currently used at the facility to produce electricity.

G. Part VIII of this chapter is not applicable to the following:

1. CCR landfills that have ceased receiving CCR prior to October 19, 2015;

2. Electric utilities or independent power producers that have ceased producing electricity prior to October 19, 2015;

3. Wastes, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated at facilities that are not part of an electric utility or independent power producer, such as manufacturing facilities, universities, and hospitals;

4. Fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, generated primarily from the combustion of fuels (including other fossil fuels) other than coal, for the purpose of generating electricity unless the fuel burned consists of more than 50% coal on a total heat input or mass input basis, whichever results in the greater mass feed rate of coal;

5. Practices that meet the definition of a beneficial use of CCR;

6. CCR placement at active or abandoned underground or surface coal mines; or

1. No person shall dispose of solid waste in open dumps, nor own, operate or allow to be operated on his property an open dump as defined in subsection B of this section or § 10.1-1400 of the Code of Virginia. Both permitted and unpermitted sites or facilities may be classified as open dumps.

2. Any person found to be in violation of this section shall be ordered to immediately cease treatment, storage, and disposal of any additional solid waste and shall take measures to abate improper management of the solid waste and come into compliance with the requirements of this chapter.

1. Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in 40 CFR 257.1 through 257.3-8 are adopted herein and incorporated by reference as part of the Virginia Solid Waste Management Regulations. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are part of 40 CFR 257.1 through 257.3-8 are also hereby incorporated as part of the Virginia Solid Waste Management Regulations.

2. In all locations in these regulations where 40 CFR 257.1 through 257.3-8 are incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into these regulations:

a. 40 CFR 257.1(b) and 40 CFR 257.3-5 are not included in the incorporation of 40 CFR 257.1 through 257.3-8 by reference and are not part of the Virginia Solid Waste Management Regulations.

b. The following text shall be substituted for 40 CFR 257.1(a): "Unless otherwise provided, the criteria in §§ 257.1 through 257.3-8 are adopted for determining which solid waste disposal facilities and practices are a nuisance and pose a reasonable probability of adverse effects on health or the environment under §§ 1008(a)(3) and 4004(a) of the Resource Conservation and Recovery Act, 42 USC § 6901 et seq. (1976) (RCRA) and the Virginia Waste Management Act, § 10.1-1400 of the Code of Virginia (Act). Unless otherwise provided, the criteria in §§ 257.50 through 257.107 are adopted for determining which CCR landfills and CCR surface impoundments pose a reasonable probability of adverse effects on human health or the environment under sections 1008(a)(3) and 4004(a) of the Resource Conservation and Recovery Act."

c. The following text shall be substituted for 40 CFR 257.1(a)(1): "Facilities failing to satisfy the criteria in §§ 257.1 through 257.3-8 or §§ 257.5 through 257.30 or §§ 257.50 through 257.107 are considered open dumps, which are prohibited under section 4005 of RCRA and § 10.1-1408.1 of the Act."

d. The following text shall be substituted for 40 CFR 257.1(a)(2): "Practices failing to satisfy the criteria in §§ 257.1 through 257.3-8 or §§ 257.5 through 257.30 or §§ 257.50 through 257.107 constitute open dumping, which is prohibited under section 4005 of RCRA and § 10.1-1408.1 of the Act."

e. In addition to those exceptions found in 40 CFR 257.1(c), the open dump criteria does not apply to sites actively enrolled in the Voluntary Remediation Program (9VAC20-160) or sites that have successfully completed the Voluntary Remediation Program in accordance with all conditions and requirements of their Certificates of Satisfactory Completion.

f. In addition to those exceptions found in 40 CFR 257.1(c), the open dump criteria shall not apply to sites that are undergoing remediation per the requirements of CERCLA or the RCRA Corrective Action Program and are doing so with the department's and/oror the U.S. Environmental Protection Agency's oversight.

C. Site evaluation and remedial action.

1. If a site is a potential or probable open dump, a site evaluation may be conducted. This site evaluation will be conducted by the department in order to determine if further action is required under this section. The site evaluation will include but is not limited to any records that can be obtained from the owner, operator, or other responsible party as well as all documented observations by department personnel regarding the following:

a. The location of the site;

b. The amount, type, and source of the waste at the site;

c. The permit status for the activities taking place at the site; and

d. A preliminary evaluation of the site with respect to the criteria outlined in subsection B of this section.

2. Based on the criteria of subsection B of this section and the information gathered under the provisions of subdivision 1 of this subsection, the department will make a determination that the site is or is not an open dump.

3. If the department determines that the site is an open dump then the department will make a recommendation for remedial action as follows:

a. Remedial action is required; or

b. Removal of the wastes from the site and disposal at a facility permitted to accept the wastes is required. The department may require submission of evidence of proper management of the removed waste and may require evidence, including confirmatory sampling, of the removal of solid waste and any hazardous constituents. A site inspection will be preformedperformed by the department to confirm the removal of the waste materials.

4. The site evaluation conducted under this subsection may be performed pursuant to an administrative or judicial order or other appropriate mechanism as chosen by the department.

5. Pursuant to the recommendations made under subdivision 3 of this subsection, any required remedial action as deemed necessary by the department shall be performed by the responsible party pursuant to an administrative or judicial order or other appropriate mechanism as chosen by the department.

D. Process and appeal.

1. Any case decision by the department based on the requirements of this section shall be subject to the process and appeal provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

2. A final determination and an administrative order requiring remedial action may be obtained in the same hearing or proceeding subject to the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

9VAC20-81-90. Relationship with other regulations promulgated by the Virginia Waste Management Board.

1. Solid wastes that have been declared hazardous or a universal waste by the generator in accordance with 40 CFR 262.11, as amended, or that are regulated as hazardous wastes by the Commonwealth or another state, and will be treated, stored, or disposed of in Virginia shall be managed in accordance with the requirements of 9VAC20-60 and not 9VAC20-81.

2. Any material from a state other than Virginia that is classified as a hazardous waste in that state shall be managed in accordance with 9VAC20-60.

a. (i) A specific approval is obtained from the director for acceptance of the material at a facility with an approved liner and leachate collection system; or (ii) it is included in the facility permit; and

b. Records are kept of the actual amount, type, and source of these wastes.

B. Regulated Medical Waste Management Regulations (9VAC20-120). Solid wastes that are defined as regulated medical wastes by the Regulated Medical Waste Management Regulations shall be managed in accordance with those regulations. Regulated medical wastes that are excluded or exempt by 9VAC20-120 shall be regulated by this chapter.

F. Transportation of Solid and Medical Wastes on State Waters (9VAC20-170). 9VAC20-170 establishes the standards and procedures pertaining to the commercial transport, loading and offloading of solid wastes or regulated medical wastes upon the navigable waters of the Commonwealth.

H. Coal Combustion Byproduct Regulations (9VAC20-85). 9VAC20-85 establishes standards for the use of fossil fuel combustion products, which are not subject to requirements of this chapter, and to establishestablishes standards for siting, design, construction, operation, and administrative procedures pertaining to their use, reuse, or reclamation other than in a manner addressed by this chapter.

A.Wastes identified in this section are solid wastes that are subject to this chapterunless regulated pursuant to other applicable regulations issued by the department.

B. Except as otherwise provided, the definition of solid waste per 40 CFR 261.2 as incorporated by 9VAC20-60-261, as amended, is also hereby incorporated as part of this chapter. Except as otherwise provided, all material definitions, reference materials and other ancillaries that are a part of 9VAC20-60-261, as amended, are also hereby incorporated as part of this chapter as well.

C. Except as otherwise modified or excepted by 9VAC20-60, the materials listed in the regulations of the United States Environmental Protection Agency set forth in 40 CFR 261.4(a) are considered a solid waste for the purposes of this chapter. However, these materials are not regulated under the provisions of this chapter if all conditions specified therein are met. This list and all material definitions, reference materials and other ancillaries that are part of 40 CFR Part 261.4(a), as incorporated, modified and/oror accepted by 9VAC20-60 are incorporated as part of this chapter. In addition, the following materials are not solid wastes for the purpose of this chapter:

1. Materials generated by any of the following, which are returned to the soil as fertilizers:

a. The growing and harvesting of agricultural crops.

b. The raising and husbanding of animals, including animal manures and used animal bedding.

2. Mining overburden returned to the mine site.

3. Recyclable materials used in manner constituting disposal per 9VAC20-60-266.

4. Wood wastes burned for energy recovery.

5. Materials that are:

a. Used or reused, or prepared for use or reuse, as an ingredient in an industrial process to make a product, or as effective substitutes for commercial products or natural resources provided the materials are not being reclaimed or accumulated speculatively; or

b. Returned to the original process from which they are generated.

6. Materials that are beneficially used as determined by the department under this subsection. The department may consider other waste materials and uses to be beneficial in accordance with the provisions of 9VAC20-81-97.

7. The following materials and uses listed in this part are exempt from this chapter as long as they are managed so that they do not create an open dump, hazard, or public nuisance. These materials and the designated use are considered a beneficial use of waste materials:

a. Clean wood, wood chips, or bark from land clearing, logging operations, utility line clearing and maintenance operations, pulp and paper production, and wood products manufacturing, when these materials are placed in commerce for service as mulch, landscaping, animal bedding, erosion control, habitat mitigation, wetlands restoration, or bulking agent at a compost facility operated in compliance with Part IV (9VAC20-81-300 et seq.) of this chapter;

b. Clean wood combustion residues when used for pH adjustment in compost, liquid absorbent in compost, or as a soil amendment or fertilizer, provided the application rate of the wood ash is limited to the nutrient need of the crop grown on the land on which the wood combustion residues will be applied and provided that such application meets the requirements of the Virginia Department of Agriculture and Consumer Services (2VAC5-400 and 2VAC5-410);

c. Compost that satisfies the applicable requirements of the Virginia Department of Agriculture and Consumer Services (2VAC5-400 and 2VAC5-410);

d. Nonhazardous, contaminated soil that has been excavated as part of a construction project and that is used as backfill for the same excavation or excavations containing similar contaminants at the same site, at concentrations at the same level or higher. Excess contaminated soil from these projects is subject to the requirements of this chapter;

e. Nonhazardous petroleum contaminated soil that has been treated to the satisfaction of the department in accordance with 9VAC20-81-660;

g. Solid wastes that are approved in advance of the placement, in writing, by the department or that are specifically mentioned in the facility permit for use as alternate daily cover material or other protective materials for landfill liner or final cover system components;

h. Fossil fuel combustion products that are not CCR when used as a material in the manufacturing of another product (e.g., concrete, concrete products, lightweight aggregate, roofing materials, plastics, paint, flowable fill) or as a substitute for a product or material resource (e.g., blasting grit, roofing granules, filter cloth pre-coat for sludge dewatering, pipe bedding);

i. Tire chips and tire shred when used as a sub basesub-base fill for road base materials or asphalt pavements when approved by the Virginia Department of Transportation or by a local governing body;

j. Tire chips, tire shred, and ground rubber used in the production of commercial products such as mats, pavement sealers, playground surfaces, brake pads, blasting mats, and other rubberized commercial products;

k. Tire chips and tire shred when used as backfill in landfill gas or leachate collection pipes, recirculation lines, and drainage material in landfill liner and cover systems, and gas interception or remediation applications;

l. Waste tires, tire chips or tire shred when burned for energy recovery or when used in pyrolysis, gasification, or similar treatment process to produce fuel;

n. Uncontaminated concrete and concrete products, asphalt pavement, brick, glass, soil, and rock placed in commerce for service as a substitute for conventional aggregate; and

o. Clean, ground gypsum wallboard when used as a soil amendment or fertilizer, provided the following conditions are met:

(1) No components of the gypsum wallboard have been glued, painted, or otherwise contaminated from manufacture or use (e.g., waterproof or fireproof drywall) unless otherwise processed to remove contaminants.

(2) The gypsum wallboard shall be processed so that 95% of the gypsum wallboard is less than 1/4 inch by 1/4 inch in size, unless an alternate size is approved by the department.

(3) The gypsum wallboard shall be applied only to agricultural, silvicultural, landscaped, or mined lands or roadway construction sites that need fertilization.

(4) The application rate for the ground gypsum wallboard shall not exceed the following rates.

Region

Rate

Piedmont, Mountains, and Ridge and Valley

250 lbs/1,000 ft2

Coastal Plain

50 lbs/1,000 ft2

Note: These weights are for dry ground gypsum wallboard.

D. The following activities are conditionally exempt from this chapter provided no open dump, hazard, or public nuisance is created:

1. Composting of sewage sludge at the sewage treatment plant of generation without addition of other types of solid wastes.

2. Composting of household waste generated at a residence and composted at the site of generation.

3. Composting activities performed for educational purposes as long as no more than 100 cubic yards of materials are on siteonsite at any time. Greater quantities will be allowed with suitable justification presented to the department. For quantities greater than 100 cubic yards, approval from the department will be required prior to composting.

4. Composting of animal carcasses onsite at the farm of generation.

5. Composting of vegetative waste and/oror yard waste generated onsite by owners or operators of agricultural operations or owners of the real property or those authorized by the owners of the real property provided:

a. All decomposed vegetative waste and compost produced is utilized on said property;

b. No vegetative waste or other waste material generated from other sources other than said property is received;

c. All applicable standards of local ordinances that govern or concern vegetative waste handling, composting, storage or disposal are satisfied; and

d. They pose no nuisance or present no potential threat to human health or the environment.

6. Composting of yard waste by owners or operators who accept yard waste generated offsite shall be exempt from all other provisions of this chapter as applied to the composting activities provided the requirements of 9VAC20-81-397 B are met.

8. Vermicomposting, when used to process Category I, Category II, or Category III feedstocks in containers designed to prohibit vector attraction and prevent nuisance odor generation. If offsite feedstocks are received no more than 100 cubic yards of materials may be onsite at any one time. For quantities greater than 100 cubic yards, approval from the department will be required prior to composting.

9. Composting of sewage sludge or combinations of sewage sludge with nonhazardous solid waste provided the composting facility is permitted under the requirements of a Virginia Pollution Abatement (VPA) or VPDES permit.

10. Management of solid waste in appropriate containers at the site of its generation, provided that:

a. Putrescible waste is not stored more than seven days between time of collection and time of removal for disposal;

b. Nonputrescible wastes are not stored more than 90 days between time of collection and time of removal for proper management; and

c. Treatment of waste is conducted in accordance with the following:

(1) In accordance with a waste analysis plan that:

(a) Contains a detailed chemical and physical analysis of a representative sample of the waste being treated, and contains all records necessary to treat the waste in accordance with the requirements of this part, including the selected testing frequency; and

(b) Is kept in the facility's onsite file and made available to the department upon request.

(2) Notification is made to the receiving waste management facility that the waste has been treated.

12. Storage of less than 100 waste tires at the site of generation provided that no waste tires are accepted from offsite and that the storage will not present a hazard or a nuisance.

13. Storage in piles of land-clearing debris including stumps and brush, clean wood wastes, log yard scrapings consisting of a mixture of soil and wood, cotton gin trash, peanut hulls, and similar organic wastes that do not readily decompose, are exempt from this chapter if they meet the following conditions at a minimum:

a. The wastes are managed in the following manner:

(1) They do not cause discharges of leachate, or attract vectors.

(2) They cannot be dispersed by wind and rain.

(3) Fire is prevented.

(4) They do not become putrescent.

b. Any facility storing waste materials under the provisions of this subsection shall obtain a storm waterstormwater discharge permit if they are considered a significant source under the provisions of 9VAC25-31-120 A 1 c.

c. No more than a total of 1/3 acre of waste material is stored onsite and the waste pile does not exceed 15 feet in height above base grade.

d. Siting provisions.

(1) All log yard scrapings consisting of a mixture of soil and wood, cotton gin trash, peanut hulls, and similar organic wastes that do not readily decompose are stored at the site of the industrial activity that produces them;

(2) A 50-foot fire break is maintained between the waste pile and any structure or tree line;

(3) The slope of the ground within the area of the pile and within 50 feet of the pile does not exceed 4:1;

(4) No waste material may be stored closer than 50 feet to any regularly flowing surface water body or river, floodplain, or wetland; and

e. If activities at the site cease, any waste stored at the site must be properly managed in accordance with these regulations within 90 days. The director can approve longer time framestimeframes with appropriate justification. Justification must be provided in writing no more than 30 days after ceasing activity at the site.

f. Waste piles that do not meet these provisions are required to obtain a permit in accordance with the permitting provisions in Part V (9VAC20-81-400 et seq.) of this chapter and meet all of the applicable waste pile requirements in Part IV (9VAC20-81-300 et seq.) of this chapter. Facilities that do not comply with the provisions of this subsection and fail to obtain a permit are subject to the provisions of 9VAC20-81-40.

14. Storage of nonhazardous solid wastes and hazardous wastes, or hazardous wastes from conditionally exempt small quantity generators as defined in Virginia Hazardous Waste Management Regulations (9VAC20-60) at a transportation terminal or transfer station in closed containers meeting the U.S. Department of Transportation specifications is exempt from this section and the permitting provisions of Part V (9VAC20-81-400 et seq.) of this chapter provided such wastes are removed to a permitted storage or disposal facility within 10 days from the initial receipt from the waste generator. To be eligible for this exemption, each shipment must be properly documented to show the name of the generator, the date of receipt by the transporter, and the date and location of the final destination of the shipment. The documentation shall be kept at the terminal or transfer station for at least three years after the shipment has been completed and shall be made available to the department upon request. All such activities shall comply with any local ordinances.

15. Open burning of solid wastes as provided in the following:

a. For forest management, agriculture practices, and highway construction and maintenance programs approved by the State Air Pollution Control Board.

b. For training and instruction of government and public firefighters under the supervision of the designated official and industrial in-house firefighting personnel with clearance from the local firefighting authority. Buildings that have not been demolished may be burned under the provisions of this subdivision only. Additionally, burning rubber tires, asphaltic materials, crankcase oil, impregnated wood, or other rubber-based or petroleum-based wastes is permitted when conducting bona fide firefighting instruction.

c. For the destruction of classified military documents under the supervision of the designated official.

d. For campfires or other fires using clean wood or vegetative waste that are used solely for recreational purposes, for ceremonial occasions, for outdoor preparation of food, and for warming of outdoor workers.

e. For the onsite destruction of vegetative waste located on the premises of private property, provided that no regularly scheduled collection service for such vegetative waste is available at the adjacent street or public road.

f. For the onsite destruction of household waste by homeowners or tenants, provided that no regularly scheduled collection service for such household waste is available at the adjacent street or public road.

g. For the onsite destruction of clean wood waste and debris waste resulting from property maintenance; from the development or modification of roads and highways, parking areas, railroad tracks, pipelines, power and communication lines, buildings or building areas, sanitary landfills; or from any other clearing operations.

16. Open burning of vegetative waste is allowed at a closed landfill that has not been released from postclosure care. The activity shall be included in the text of the postclosure plan and conducted in accordance with § 10.1-1410.3 of the Code of Virginia.

17. Placement of trees, brush, or other vegetation from land used for agricultural or silvicultural purposes on the same property or other property of the same landowner.

18. Using fossil fuel combustion products that are not CCR in one or more of the following applications or when handled, processed, transported, or stockpiled for the following uses:

a. As a base, sub-base or fill material under a paved road, the footprint of a structure, a paved parking lot, sidewalk, walkway or similar structure, or in the embankment of a road. In the case of roadway embankments, materials will be placed in accordance with VDOTVirginia Department of Transportation specifications, and exposed slopes not directly under the surface of the pavement must have a minimum of 18 inches of soil cover over the fossil fuel combustion products, the top six inches of which must be capable of sustaining the growth of indigenous plant species or plant species adapted to the area. The use, reuse, or reclamation of unamended coal combustion byproduct shall not be placed in an area designated as a 100-year flood plain;

b. Processed with a cementitious binder to produce a stabilized structural fill product that is spread and compacted with proper equipment for the construction of a project with a specified end use; or

c. For the extraction or recovery of materials and compounds contained within the fossil fuel combustion products.

E. The following solid wastes are exempt from this chapter provided that they are managed in accordance with the requirements promulgated by other applicable state or federal agencies:

1. Management of wastes regulated by the State Board of Health, the State Water Control Board, the Air Pollution Control Board, the Department of Mines, Minerals and Energy, Department of Agriculture and Consumer Services, or any other state or federal agency with such authority.

2. Drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy.

3. Solid waste from the extraction, beneficiation, and processing of ores and minerals, including coal.

4. Fossil fuel combustion products used for mine reclamation, mine subsidence, or mine refuse disposal on a mine site permitted by the Virginia Department of Mines, Minerals and Energy (DMME) when used in accordance with the standards.

5. Solid waste management practices that involve only the onsite placing of solid waste from mineral mining activities at the site of those activities and in compliance with a permit issued by the DMME, that do not include any municipal solid waste, are accomplished in an environmentally sound manner, and do not create an open dump, hazard or public nuisance are exempt from all requirements of this chapter.

6. Waste or byproduct derived from an industrial process that meets the definition of fertilizer, soil amendment, soil conditioner, or horticultural growing medium as defined in § 3.2-3600 of the Code of Virginia, or whose intended purpose is to neutralize soil acidity (see § 3.2-3700 of the Code of Virginia), and that is regulated under the authority of the Virginia Department of Agriculture and Consumer Services.

7. Fossil fuel combustion products bottom ash or boiler slag used as a traction control material or road surface material if the use is consistent with Virginia Department of Transportation practices. This exemption does not apply to CCR used in this manner.

8. Waste tires generated by and stored at salvage yards licensed by the Department of Motor Vehicles provided that such storage complies with requirements set forth in § 10.1-1418.2 of the Code of Virginia and such storage does not pose a hazard or nuisance.

9. Tire chips used as the drainage material in construction of septage drain fields regulated under the authority of the Virginia Department of Health.

F. The following solid wastes are exempt from this chapter provided that they are reclaimed or temporarily stored incidentally to reclamation, are not accumulated speculatively, and are managed without creating an open dump, hazard, or a public nuisance:

1. Paper and paper products;

2. Clean wood waste that is to undergo size reduction in order to produce a saleable product, such as mulch;

3. Cloth;

4. Glass;

5. Plastics;

6. Tire chips, tire shred, ground rubber; and

7. Mixtures of above materials only. Such mixtures may include scrap metals excluded from regulation in accordance with the provisions of subsection C of this section.

A. The department may consider other waste materials and uses to be beneficial. The generator or proposed user of such materials may request that the department make a case-specific determination that the solid waste may be beneficially used in a manufacturing process to make a product or as an effective substitute for a commercial product. In all such cases, the materials will be managed so they do not create an open dump, hazard, or public nuisance.

1. The requestor shall provide the following information:

a. A description of the solid waste under review and its proposed use;

b. Chemical and physical characteristics of the solid waste under review and of each type of proposed product;

c. A demonstration that there is a known or reasonably probable market for the intended use of the solid waste under review and of all proposed products by providing one or more of the following:

(1) A description of how the proposed product will be used;

(2) A demonstration that the proposed product complies with industry standards and specifications for that product if any; or

(3) Other documentation that a market for the proposed product or use exists; and

d. A demonstration that the management of the solid waste under review will not adversely affect human health and safety, the environment, and natural resources by providing:

(1) A solid waste control plan that describes the following:

(a) The source of the solid waste under review;

(b) Procedures for periodic testing of the solid waste under review and the proposed product to ensure that the proposed product's composition has not changed significantly;

(c) The disposition of any solid waste that may result from the manufacture of the product into which the solid waste under review is intended to be incorporated;

(d) A description of the type of storage (e.g., container, tank, or pile) and the maximum anticipated inventory of the solid waste under review (not to exceed 90 days) before being used;

(e) Procedures for run-on and run-off control of the storage areas for the solid waste under review; and

(f) A program and implementation schedule of best management practices designed to minimize uncontrolled dispersion of the solid waste under review before and during all aspects of its storage as inventory and/orand during beneficial use; and.

2. Upon receipt of complete information required under subdivision 1 of this subsection, the department will determine in writing within 90 days, on a case-by-case basis, whether the proposal constitutes a beneficial use based on a showing that all of the following criteria have been met:

a. The proposed use of the material constitutes a reuse rather than disposal;

b. For a material that is proposed for incorporation into a manufacturing process, the material is not required to be decontaminated or otherwise specially handled or processed before such incorporation, in order to minimize loss of material or to provide adequate protection, as needed, of public health, safety, or welfare; the environment; or natural resources; and

c. Other criteria as the department shall determine in its discretion to be appropriate. Conversely, the department may determine that owing to the nature of the use, reuse, or reclamation process, some of the informational materials required under subdivision 1 of this subsection may not be required to make the determination.

3. The department will either approve the request, disapprove it, or allow the proposed use of the solid waste under review subject to such conditions as the department may impose. When granting a beneficial use determination, the department shall determine, on a case-by-case basis, the precise point at which the solid waste under review ceases to be solid waste. Unless otherwise determined for the particular solid waste under review, that point occurs when it is used in a manufacturing process to make a product or used as an effective substitute for a commercial product or a fuel. As part of its request, the generator or the proposed user may request that such point occur elsewhere. In such a request, the proponent shall include a demonstration that there is little potential for improper disposal of the material or little potential for the handling, transportation, or storage of the solid waste under review to have an adverse impact upon the public health, safety, or welfare; the environment; or natural resources.

4. The department may revoke any determination made if it finds that one or more of the items of information submitted serving as the basis for the department's determination was incorrect or is no longer valid, the department finds that there has been a violation of any condition that the department attached to such determination, or that the use, reuse, or reclamation process has become a public nuisance.

B. Beneficial use determinations granted by the department before March 16, 2011, shall remain in effect, subject to all conditions contained therein, unless specifically addressed by subsequent department action.

C. Beneficial use determinations involving coal combustion residuals must meet the requirements of beneficial use of CCR as defined in 40 CFR 257.53. Beneficial use determinations for CCR projects involving over 12,400 tons of CCR must provide the required demonstrations identified in the definition of "beneficial use of CCR" to the department for review and approval.

C. Industrial waste disposal facilities. Industrial waste disposal facilities may only receive nonhazardous industrial waste and are subject to design and operational requirements dependent on the volume and the physical, chemical, and biological nature of the waste. No other wastes are authorized for the industrial waste landfill except construction, demolition, and debris waste specifically authorized by the landfill permit. Coal combustion residual landfills are a specific type of industrial landfill and must meet the requirements in Part VIII (9VAC20-81-800 et seq.) of this chapter in addition to industrial landfill requirements found in Part III (9VAC20-81-100 et seq.) and Part V (9VAC20-81-400 et seq.) of this chapter.

A. Any person who designs, constructs, or operates any solid waste treatment or storage facility not otherwise exempt under 9VAC20-81-95 shall comply with the requirements of this part. In addition, this part sets forth conditions that yard waste composting facilities must meet to maintain their exempt status, where applicable, under 9VAC20-81-95 D 6. Further, all applications pursuant to these standards shall demonstrate specific means proposed for compliance with requirements set forth in this part.

B. All facilities, except exempted facilities, shall be maintained and operated in accordance with the permit issued or permit-by-rule status pursuant to this regulation. All facilities shall be maintained and operated in accordance with the approved design and intended use of the facility.

C. Hazardous wastes shall not be disposed or managed in facilities subject to this regulation unless specified in the permit or by specific approval of the executive director.

D. Solid waste management facilities regulated under this part that place solid wastes or residues on site for disposal, or leave such wastes or residues in place after closure, are subject to the provisions of Part III (9VAC20-81-100 et seq.) and Part VIII (9VAC20-81-800 et seq.) of this chapter, as applicable, including:

3. Permitting requirements of Part V (9VAC20-81-400 et seq.) of this chapter.

E. All other facilities shall close in accordance with the closure plan prepared per the requirements described in this part and 9VAC20-81-480, as applicable.

F. Control program for unauthorized waste. Facilities managing solid waste per activities exempted under the provisions of 9VAC20-81-95 are not required to implement the control program for unauthorized waste as provided in this section.

1. Solid waste treatment or storage facilities regulated under this part shall implement a control program for unauthorized waste in accordance with the following provisions. The owner or operator of the facility shall:

a. Place a written description of the control program for unauthorized waste in the facility's operating manual;

b. Institute a control program (including measures such as signs at all maintained access points indicating hours of operation and the types of solid waste accepted and not accepted, monitoring, alternate collection programs, passage of local laws, etc.) to assure that only solid waste authorized by the department to be managed at the solid waste management facility is being managed there; and

c. Develop and implement a program to teach the solid waste management facility's staff to recognize, remove, and report receipt of solid waste not authorized by the department to be managed at the solid waste management facilities.

2. If unauthorized waste is observed in the waste delivered to the facility prior to unloading, the owner or operator may refuse to accept the waste. If the unauthorized waste is observed in the waste delivered to the facility, the owner or operator shall segregate it, notify the generator, document the incident in the operating record, make necessary arrangements to have the material managed in accordance with applicable federal and state laws, and notify the department of the incident to include the means of proper handling. If the unauthorized waste is accepted, the owner or operator shall remove it, segregate it, and provide to the department a record identifying that waste and its final disposition. Any unauthorized waste accepted by the owner or operator shall be managed in accordance with applicable federal or state laws and regulations. Unauthorized waste that has been segregated shall be adequately secured and contained to prevent leakage or contamination to the environment. The solid waste management facility owner or operator shall have the unauthorized waste removed or properly managed as soon as practicable, but not to exceed 90 days after discovery. Removal shall be by a person authorized to transport such waste to a waste management facility approved to receive it for treatment, disposal, or transfer.

3. Owners or operators of waste to energy or incinerator facilities receiving waste generated outside of Virginia shall also comply with the increased random inspection provisions in 9VAC20-81-340 E 3.

G. Solid waste management facilities regulated under this part that store waste tires shall also adhere to the requirements of 9VAC20-81-640 for the waste tire storage.

1. The standards in this part shall apply to owners and operators of facilities producing compost from municipal solid waste/refuse or combinations of municipal solid waste/refuse with animal manures.

a. Composting facilities that employ the enclosed vessel method are referred to as Type A (confined) compost facilities. Facilities that employ the windrow or aerated static pile method are referred to as Type B compost facilities. The only composting processes that may be employed are those with prior operational performance in the United States. Any other proposed composting process shall conform to the standards contained in 9VAC20-81-395 and will require an experimental solid waste management facility permit.

(2) Mixed nonsource separated organic wastes including but not limited to municipal solid waste; and

(3) Industrial sludge.

B. Solid waste transfer stations. The standards in this part shall apply to owners and operators of solid waste transfer stations.

C. Centralized waste treatment facilities. The standards in this part shall apply to owners and operators of solid waste management facilities who operate a treatment system to solidify nonhazardous solid waste to meet the disposal criteria of 9VAC20-81-140 where the waste is generated offsite, and such treatment system must have no discharge. The requirements of this section shall not apply to solidification operations at active landfills that are authorized in the landfill's solid waste permit.

D. Materials recovery facilities.

1. The standards in this part shall apply to owners and operators of solid waste management facilities that operate to reclaim solid waste.

2. The regulations of this part do not apply to:

a. The landfill gas recovery systems operated at active and closed solid waste disposal facilities that are regulated under 9VAC20-81-200;

b. The storage and treatment facilities associated with the management of materials conditionally exempt from this chapter on the basis of 9VAC20-81-95 F;

c. The facilities that use materials in a manner that constitutes disposal that are regulated under Part VI (9VAC20-81-610 et seq.) of this chapter; or

d. The disposal of residues from the materials recovery facilities that is regulated under Part III (9VAC20-81-100 et seq.) of this chapter.

E. Waste to energy and incineration facilities.

1. The standards in this part shall apply to owners and operators of solid waste and process residue storage and handling facilities associated with the energy recovery from or incineration of solid wastes.

2. The regulations of this part do not apply to:

a. The design and operation of the combustor units regulated by the Air Pollution Control Board; or

b. The disposal of residues from the waste to energy or incineration facilities that is regulated under Part III (9VAC20-81-100 et seq.) of this chapter.

F. Surface impoundments and lagoons.

1. Lagoons and surface impoundments are regulated under State Water Control Law. During the operating life of these facilities, this chapter does not apply. If the operator intends to close such a facility by burial of sludges and residue in place, this chapter shall not apply where the regulating agency establishes the closure requirements in accordance with water pollution control regulations. The standards in this section shall apply to owners and operators of lagoons and surface impoundments only if new wastes, not contained in the lagoon or impoundment, are proposed to be disposed with the residue. In those cases, the operation and closure of the facility constitutes construction and operation of a landfill and must be accomplished as specified in Part III (9VAC20-81-100 et seq.) of this chapter.

2. Leachate lagoons are regulated under Part III (9VAC20-81-100 et seq.) of this chapter and are subject to the requirements for liners in 9VAC20-81-210 C.

3. Notwithstanding the provisions of subdivision 1 of this subsection, this chapter, in accordance with 9VAC20-81-45, applies to CCR surface impoundments in addition to the requirements under the State Water Control Law.

G. Waste piles.

1. The standards in this part shall apply to owners and operators of facilities that store or treat nonputrescible solid waste in piles.

2. Owners or operators of waste piles that will be closed with wastes left in place are subject to regulations contained in Part III (9VAC20-81-100 et seq.) of this chapter.

3. This part does not apply if materials will be actively composted according to all the requirements for compost facilities in Part IV (9VAC20-81-300 et seq.) of this chapter.

4. The regulations in this part do not apply to the management of industrial co-products in piles. A material shall be considered an industrial co-product if a demonstration can be made consistent with 9VAC20-81-95 or 9VAC20-81-97 that the material is not a solid waste.

5. The regulations in this part do not apply to active logging operations subject to regulation under the provisions of §§ 10.1-1181.1throughand 10.1-1181.2 of the Code of Virginia.

1. Remove all waste residue, contaminated containment system components (liners, etc.), contaminated subsoils, and decontaminate structures and equipment contaminated with waste, and manage them as solid waste (or hazardous waste, if applicable) unless exempt under Part III (9VAC20-81-100 et seq.) of this chapter; or

2. Close the impoundment and provide postclosure care for a landfill under Part III (9VAC20-81-100 et seq.) of this chapter, including the following:

a. Eliminate free liquids by removing liquid waste and waste residue;

b. Install a groundwater monitoring system and initiate groundwater monitoring in accordance with the requirements of 9VAC20-81-250;

c. Stabilize remaining waste residues to a bearing capacity necessary to support the final cover; and

d. Cover the surface impoundment with a final cover designed and constructed in accordance with the requirements of 9VAC20-81-160 D 2.

3. Close inactive, new, and existing CCR surface impoundments in accordance with the requirements of Part VIII (9VAC20-81-800 et seq.) of this chapter or this subsection, whichever is more stringent.

B. Inspection. The department shall inspect all solid waste management facilities at the time of closure to confirm that the closing is complete and adequate. It shall notify the owner of a closed facility, in writing, if the closure is satisfactory and shall require any necessary construction or such other steps as may be necessary to bring unsatisfactory sites into compliance with this chapter.

A. Any person who proposes to establish a new solid waste management facility (SWMF) or modify an existing SWMF shall submit a permit application to the department, using the procedures set forth in this section and other pertinent sections of this part.

B. Notice of intent.

1. To initiate the permit application process, any person who proposes to establish a new solid waste management facility (SWMF) or modify an existing SWMF or to modify an existing permit shall file a notice of intent with the director stating the desired permit or permit modification, the precise location of the proposed facility, and the intended use of the facility. The notice shall be in letter form and be accompanied by an area map and a site location map.

2. No application for a new solid waste management facility permit or application for a modification for a noncaptive industrial landfill to expand or increase capacity shall be deemed complete unless it is accompanied by DEQ Form DISC-01 and 02 (Disclosure Statement) for all key personnel.

3. No application for a new solid waste management facility permit or application for a modification for a noncaptive industrial landfill to expand or increase capacity shall be considered complete unless the notice of intent is accompanied by a certification from the governing body of the county, city, or town in which the facility is to be located stating that the location and operation of the facility are consistent with all applicable local ordinances, as well as with the local or regional solid waste management plan (SWMP) approved by the department or has initiated the process of amending the SWMP to include the new or expanded facility or an increase in capacity. No certification shall be required for the application for a modification of an existing permit (not including increase in capacity or expansion) other than for a noncaptive industrial landfill in this subdivision. DEQ Form SW-11-1 (Request for Local Government Certification) is provided for the use of the regulated community. Permit and permit-by-rule applicants shall comply with the statutory requirements for consistency with solid waste management plans as recorded in § 10.1-1408.1 of the Code of Virginia.

4. If the applicant proposes to operate a new sanitary landfill or transfer station, the notice of intent shall include a statement describing the steps taken by the applicant to seek the comments of the residents of the area where the sanitary landfill or transfer station is proposed to be located regarding the siting and operation of the proposed sanitary landfill or transfer station. The public comment steps shall be taken prior to filing with the department the notice of intent.

a. The public comment steps shall include publication of a public notice once a week for two consecutive weeks in a newspaper of general circulation serving the locality where the sanitary landfill or transfer station is proposed to be located and holding at least one public meeting within the locality at a time convenient to the public to identify issues of concern, to facilitate communication, and to establish a dialogue between the applicant and persons who may be affected by the issuance of a permit for the sanitary landfill or transfer station.

b. At a minimum, the public notice shall include:

(1) A statement of the applicant's intent to apply for a permit to operate the proposed sanitary landfill or transfer station;

(2) The proposed sanitary landfill or transfer station site location;

(3) The date, time, and location of the public meeting the applicant will hold; and

(4) The name, address, and telephone number of a person employed by an applicant who can be contacted by interested persons to answer questions or receive comments on siting and operation of the proposed sanitary landfill or transfer station.

c. The first publication of the public notice shall be at least 14 days prior to the public meeting date.

d. In addition, the applicant shall adhere to the applicable requirements of § 10.1-1408.1 B of the Code of Virginia.

5. Disposal capacity guarantee. If the applicant proposes to construct a new sanitary landfill or expand an existing sanitary landfill, a signed statement must be submitted by the applicant guaranteeing that sufficient disposal capacity will be available in the facility to enable localities within the Commonwealth to comply with their solid waste management plans developed pursuant to 9VAC20-130 and certifying that such localities will be allowed to contract for and reserve disposal capacity in the facility. This provision does not apply to permit applications from one or more political subdivisions for new or expanded landfills that will only accept municipal solid waste generated within those jurisdictions or from other jurisdictions under an interjurisdictional agreement.

6. Host agreement. If a host agreement is required, as noted in § 10.1-1408.1 B 7 of the Code of Virginia, it shall contain all the requirements specified in that section of the law.

7. If the application is for a locality owned and operated sanitary landfill, or the expansion of such a landfill, the applicant shall provide information on:

a. The daily travel routes and traffic volumes that correlate with the daily disposal limit;

b. The daily disposal limit; and

c. The service area of the facility.

8. If the application is for a new solid waste management facility or a modification allowing a facility expansion or an increase in capacity, the director shall evaluate whether there is a need for the additional capacity in accordance with § 10.1-1408.1 D 1 of the Code of Virginia. The information in either subdivision 8 a or b of this subsection must be provided with the notice of intent to assist the director with the required investigation and analysis. Based on the information submitted, the owner or operator will demonstrate how the additional capacity will be utilized over the life of the facility.

a. For any solid waste management facility including a sanitary landfill, information demonstrating that there is a need for the additional capacity. Such information shall include the following. If a certain item is not applicable for a facility, it may be indicated so with reasonable justifications.

(1) The anticipated area to be served by the facility;

(2) Similar or related solid waste management facilities that are in the same service area and could impact the proposed facility, and the capacity and service life of those facilities;

(3) The present quantity of waste generated within the proposed service area;

(4) The waste disposal needs specified in the local solid waste plan;

(5) The projected future waste generation rates for the anticipated area to be served during the proposed life of the facility;

(6) The recycling, composting, or other waste management activities within the proposed service area;

(7) The additional solid waste disposal capacity and anticipated site life that the facility would provide to the proposed area of service;

(8) Information demonstrating that the capacity is needed to enable localities to comply with solid waste plans developed pursuant to § 10.1-1411 of the Code of Virginia; and

(9) Any additional factors that provide justification for the additional capacity provided by the facility.

b. As an alternative, for sanitary landfills, based on current or projected disposal rates, information demonstrating there is less than 10 years of capacity remaining in the facility and information demonstrating either of the following:

(1) The available permitted disposal capacity for the state is less than 20 years based on the most current reports submitted pursuant to the Waste Information and Assessment Program in 9VAC20-81-80; or

(2) The available permitted disposal capacity is less than 20 years in either:

(a) The planning region, or regions, immediately contiguous to the planning region of the host community; or

(b) The facilities within a 75-mile radius of the proposed facility.

9. If the location and operation of the facility is stated by the local governing body to be consistent with all its ordinances, without qualifications, conditions, or reservations, and the notice intent is complete, the applicant will be notified that he may submit his application for a SWMF permit. This application shall be submitted in two parts, identified as Part A and Part B.

10. The applicant shall submit certification from the State Corporation Commission that the business entity pursuing the solid waste management permit is a valid entity, authorized to transact its business in Virginia. This requirement does not apply to those facilities owned solely by governmental units.

11. If the application is for an existing CCR landfill or existing CCR surface impoundment, a complete permit application must be submitted no later than October 17, 2017, to continue operation.

C. Part A application. Part A application provides the information essential for assessment of the site suitability for the proposed facility. It contains information on the proposed facility to be able to determine site suitability for intended uses. It provides information on all siting criteria applicable to the proposed facility.

1. The applicant shall complete, sign, and submit three copies of the Part A application containing required information and attachments as specified in 9VAC20-81-460 to the department and shall submit to the department the applicable permit fee under the provisions of 9VAC20-90.

2. The Part A application will be reviewed for completeness. The applicant will be notified within 30 days whether the application is administratively complete or incomplete. If complete information is not provided within 60 days after the applicant is notified, or an alternate timeframe approved by the department, the application will be returned to the applicant without further review. Subsequent resubmittals of the application, submitted after 18 months from the date of the department's response letter, shall be considered as a new application, unless an alternate timeline has been approved by the department.

3. Upon receipt of a complete Part A application, the department shall conduct a technical review of the submittal. Additional information may be required or the site may be visited before the review is completed. The director shall notify the applicant in writing of approval or disapproval of the Part A application or provide conditions to be made a part of the approval.

4. For sanitary landfills, the director's notification must indicate that the site on which the landfill will be located is suitable for the construction and operation of a landfill. In making this determination, the director will consider the information presented in the site hydrogeologic and geotechnical report (9VAC20-81-460 F), the landfill impact statement (9VAC20-81-460 H 1) and the adequacy of transportation facilities (9VAC20-81-460 G). The director may also consider other factors at his discretion.

5. In case of the approval or conditional approval, the applicant may submit the Part B application provided the required conditions are addressed in the submission.

D. Part B application. The Part B application involves the submission of the detailed engineering design and operating plans for the proposed facility.

1. The applicant, after receiving Part A approval, may submit to the department a Part B application to include the required documentation for the specific solid waste management facility as provided for in 9VAC20-81-470 or 9VAC20-81-480. The Part B application and supporting documentation shall be submitted in three copies and must include the applicable permit fee under the provisions of 9VAC20-90 and the financial assurance documentation as required by 9VAC20-70.

2. The Part B application shall be reviewed for administrative completeness before technical evaluation is initiated. The applicant shall be advised in writing within 30 days whether the application is complete or what additional documentation is required. Subsequent resubmittals of the application, submitted after 18 months from the date of the department's response letter, shall be considered a new application, unless an alternate timeline has been approved by the department. The Part B application will not be evaluated until an administratively complete application is received.

3. The administratively complete application will be coordinated with other state agencies according to the nature of the facility. The comments received shall be considered in the permit review by the department. The application will be evaluated for technical adequacy and regulatory compliance. In the course of this evaluation, the department may require the applicant to provide additional information. At the end of the evaluation, the department will notify the applicant that the application is technically adequate and in regulatory compliance, or that the department intends to deny the application.

4. The procedures addressing the denial are contained in 9VAC20-81-550.

E. Permit issuance.

1. If the application is found to be technically adequate and in full compliance with this chapter, a draft permit shall be developed by the department.

2. Copies of the draft permit will be available for viewing at the applicant's place of business or at the regional office of the department, or both, upon request. A notice announcing the beginning of the public comment period and the availability of the draft permit shall be made in a newspaper with general circulation in the area of the facility. A copy of the notice of availability will be provided to the chief administrative officer of all cities and counties that are contiguous to the host community.

3. If the application is for a new landfill or an increase in landfill capacity (includes expansion), then the department shall hold a public hearing and the notice in subdivision 2 of this subsection will include such information.

4. For any application (other than subdivision 3 of this subsection), the notice shall notify the public of the 30-day public comment period and include the opportunity to request a public hearing. The department shall hold a public hearing on the draft permit whenever the department finds, on the basis of requests, that:

a. There is a significant public interest in the issuance, denial, modification, or revocation of the permit in question;

b. There are substantial, disputed issues relevant to the issuance, denial, modification, or revocation of the permit in question; and

c. The action requested is not, on its face, inconsistent with, or in violation of, these regulations, the Waste Management Act (§ 10.1-1400 et seq. of the Code of Virginia), or federal law or regulations.

5. The department also may hold a public hearing when it is believed that such a hearing might clarify one or more issues involved in a permit decision.

6. If a public hearing is to be held, the department shall convene it 30 days or more after the notice is published in the local newspaper. The public hearing shall be conducted within the local government jurisdiction of the facility. A comment period shall extend for a 15-day period after the conclusion of the public hearing.

7. A decision to permit, to deny a permit, or to modify the draft permit shall be rendered by the director within 90 days of the close of the hearing comment period.

8. The permit applicant and the persons who commented during the public participation period shall be notified in writing of the decision on the draft permit. That decision may include denial of the permit (see also 9VAC20-81-550), issuance of the permit as drafted, or modification of the draft permit and issuance.

9. No permit for a new solid waste management facility nor any modification to a permit allowing a facility expansion or an increase in capacity shall be issued until the director has made a written determination, after an investigation and analysis of the potential human health, environmental, transportation infrastructure, and transportation safety impacts and needs and an evaluation of comments by the host local government, other local governments and interested persons, that (i) the proposed facility, expansion, or increase protects present and future human health and safety and the environment; (ii) there is a need for the additional capacity; (iii) sufficient infrastructure will exist to safely handle the waste flow; (iv) the increase is consistent with locality imposed or state-imposed daily disposal limits; (v) the public interest will be served by the proposed facility's operation or the expansion or increase in capacity of a facility; and (vi) the proposed solid waste management facility, facility expansion, or additional capacity is consistent with regional and local solid waste management plans developed pursuant to § 10.1-1411 of the Code of Virginia.

10. For nonhazardous industrial solid waste management facilities owned or operated by the generator of the waste managed at the facility, and that accept only waste generated by the facility owner or operator the following determination shall apply in lieu of subdivision 9 of this subsection. No new permit for a nonhazardous industrial solid waste management facility that is owned or operated by the generator of the waste managed at the facility, and that accepts only waste generated by the facility owner or operator, shall be issued until the director has determined, after investigation and evaluation of comments by the local government, that the proposed facility poses no substantial present or potential danger to human health or the environment. The department shall hold a public hearing within the county, city, or town where the facility is to be located prior to the issuance of any such permit for the management of nonhazardous industrial solid waste.

11. Where either subdivision 9 or 10 of this subsection apply, the director may request updated information during the review of the permit application if the information on which the director's determination is based is no longer current. If, based on the analysis of the materials presented in the permit application, the determination required in § 10.1-1408.1 of the Code of Virginia cannot be made, the application will be denied in accordance with 9VAC20-81-5609VAC20-81-550 A 6.

12. Any permit for a new sanitary landfill and any permit modification authorizing expansion of an existing sanitary landfill shall incorporate the conditions required for a disposal capacity guarantee in § 10.1-1408.1 of the Code of Virginia. This provision does not apply to permit applications from one or more political subdivisions that will only accept waste from within those political subdivisions' jurisdiction or municipal solid waste generated within other political subdivisions pursuant to an interjurisdictional agreement.

The following information shall be included in the Part A permit application for all solid waste management facilities unless otherwise specified in this section. All plans and drawings of the Part A application shall be certified by a professional engineer or professional geologist.

A. The Part A permit application consists of a letter stating the type of the facility for which the permit application is made and the certification required in subsection I of this section. The applicant shall submit the completed DEQ Form SW PTA (Part A Permit Application Form) and all required information and attachments as detailed in this section.

B. A key map of the Part A permit application, delineating the general location of the proposed facility, shall be prepared and attached as part of the application. The key map shall be plotted on a seven and one-half minute United StatesU.S. Geological Survey topographical quadrangle. The quadrangle shall be the most recent revision available, shall include the name of the quadrangle and shall delineate a minimum of one mile from the perimeter of the proposed facility boundaries. One or more maps may be utilized where necessary to insure clarity of the information submitted.

C. A vicinity map shall be prepared and attached as part of the application. This vicinity map shall have a minimum scale of one inch equals 200 feet (1" = 200') and shall delineate an area of 500 feet from the perimeter of the property line of the proposed facility. A vicinity map may be prepared with a reduced scale if it does not fit in a sheet with the required minimum scale and multiple sheets may be used to meet the requirement of minimum scale. The vicinity maps may be an enlargement of a United StatesU.S. Geological Survey topographical quadrangle or a recent aerial photograph. Notes may be provided in the map if one or more of the following are not present within the delineated area. The vicinity map shall depict the following:

1. All homes, buildings, or structures including the layout of the buildings that will compose the proposed facility;

2. The surveyed boundaries for the property boundary, facility boundary, and waste management boundary, and the acreages within these boundaries;

3. The limits of the actual disposal operations within the boundaries of the proposed facility;

4. Lots and blocks taken from the tax map for the site of the proposed facility and all contiguous properties;

5. The base floodplain, where it passes through the map area; or, otherwise, a note indicating the expected flood occurrence period for the area;

6. Existing land uses and zoning classification;

7. All water supply wells, springs or intakes, both public and private;

8. All utility lines, pipelines or land-based facilities (including mines and wells); and

D. Any applicant must demonstrate legal control over the site for the permit life.

E. For solid waste disposal facilities regulated under Part III (9VAC20-81-100 et seq.), site hydrogeologic and geotechnical reports by professional geologist or professional engineer.

1. The site investigation for a proposed landfill facility shall provide information regarding the geotechnical and hydrogeologic conditions at the site to allow a reasonable determination of the usefulness of the site for development as a landfill. The geotechnical exploration efforts shall be designed to provide information regarding the availability and suitability of onsite soils for use in the various construction phases of the landfill including liner, cover, drainage material, and cap. The hydrogeologic information shall be sufficient to determine the characteristics of the uppermost aquifer underlying the facility. Subsurface investigation programs conducted shall meet the minimum specifications here.

a. Borings shall be located to identify the uppermost aquifer within the proposed facility boundary, determine the ability to perform groundwater monitoring at the site, and provide data for the evaluation of the physical properties of soils and soil availability. Borings completed for the proposed facility shall be sufficient in number and depth to identify the thickness of the uppermost aquifer and the presence of any significant underlying impermeable zone in the waste management boundary. Impermeable zone shall not be fully penetrated within the anticipated fill areas, whenever possible. The number of borings shall be at a minimum in accordance with Table 5.1 as follows:

Table 5.1

Waste Management Boundary Acreage

Total Number of Borings

Less than 10

4

10 - 49

8

50 - 99

14

100 - 200

20

More than 200

24 + 1 boring for each additional 10 acres

b. The department reserves the right to require additional borings in areas in which the number of borings required by Table 5.1 is not sufficient to describe the geologic formations and groundwater flow patterns below the proposed solid waste disposal facility.

c. In highly uniform geological formations, the number of borings may be reduced, as approved by the department.

d. The borings shall employ a grid pattern, wherever possible, such that there is, at a minimum, one boring in each major geomorphic feature. The borings pattern shall enable the development of detailed cross sections through the proposed landfill site.

e. Subsurface data obtained by borings shall be collected by standard soil sampling techniques. Diamond bit coring, air rotary drilling, or other appropriate methods, or a combination of methods shall be used as appropriate to characterize competent bedrock. The borings shall be logged from the surface to the lowest elevation (base grade) or to bedrock, whichever is shallower, according to standard practices and procedures. In addition, the borings required by Table 5.1 shall be performed on a continuous basis for the first 20 feet below the lowest elevation of the solid waste disposal facility or to the bed rock. Additional samples as determined by the professional geologist or professional engineer shall be collected at five-foot intervals thereafter.

f. Excavations, test pits, and geophysical methods may be employed to supplement the soil boring investigation.

g. At a minimum, four of the borings shall be converted to water level observations wells, well nests, piezometers, or piezometer nests to allow determination of the rate and direction of groundwater flow across the site. All groundwater monitoring points or water level measurement points shall be designed to allow proper abandonment by backfilling with an impermeable material. The total number of wells or well nests shall be based on the complexity of the geology of the site.

h. Field analyses shall be performed in representative borings to determine the in situ hydraulic conductivity of the uppermost aquifer.

i. All borings not to be utilized as permanent monitoring wells, and wells within the active solid waste disposal area, shall be sealed and excavations and test pits shall be backfilled and properly compacted to prevent possible paths of leachate migration. Boring sealing procedures shall be documented in the hydrogeologic report.

2. The geotechnical and hydrogeologic reports shall at least include the following principal sections:

a. Field procedures. Boring records and analyses from properly spaced borings in the facility portion of the site. Final boring logs shall be submitted for each boring, recording soils or rock conditions encountered. Each log shall include the type of drilling and sampling equipment, date the boring was started, date the boring was finished, a soil or rock description in accordance with the United Soil Classification System or the Rock Quality Designation, the method of sampling, the depth of sample collection, the water levels encountered, and the Standard Penetration Test blow counts, if applicable. Boring locations and elevations shall be surveyed with a precision of 0.01 foot. At least one surveyed point shall be indelibly marked by the surveyor on each well. All depths of soil and rock as described within the boring log shall be corrected to National Geodetic Vertical Datum, if available.

b. Geotechnical interpretations and report including complete engineering description of the soil units underlying the site.

(3) The geotechnical report shall provide an estimate of the available volume of materials suitable for use as liner, cap, and drainage layer. It shall also discuss the anticipated uses of the onsite materials, if known.

c. Hydrogeologic report.

(1) The report shall include water table elevations, direction, and calculated rate of groundwater flow and similar information on the hydrogeology of the site. All raw data shall be submitted with calculations.

(2) The report shall contain a discussion of field test procedures and results, laboratory determinations made on undisturbed samples, recharge areas, discharge areas, adjacent or areal usage, and typical radii of influence of pumping wells.

(3) The report shall also contain a discussion of the regional geologic setting, the site geology, and a cataloging and description of the uppermost aquifer from the site investigation and from referenced literature. The geologic description shall include a discussion of the prevalence and orientation of fractures, faults, and other structural discontinuities, and presence of any other significant geologic features. The aquifer description shall address homogeneity, horizontal and vertical extent, isotropy, the potential for groundwater remediation, if required, and the factors influencing the proper placement of a groundwater monitoring network.

(4) The report shall include a geologic map of the site prepared from one of the following sources as available, in order of preference:

(a) Site specific mapping prepared from data collected during the site investigation;

(b) Published geologic mapping at a scale of 1:24,000 or larger;

(c) Published regional geologic mapping at a scale of 1:250,000 or larger; or

(d) Other published mapping.

(5) At least two generally orthogonal, detailed site specific cross sections, which shall describe the geologic formations identified by the geologic maps prepared in accordance with subdivision 2 c (4) of this subsection at a scale that clearly illustrates the geologic formations, shall be included in the hydrogeologic report. Cross sections shall show the geologic units, approximate construction of existing landfill cells base grades, water table, surficial features, and bedrock along the line of the cross section. Cross section locations shall be shown on an overall facility map.

(6) Potentiometric surface maps for the uppermost aquifer that define the groundwater conditions encountered below the proposed solid waste disposal facility area based upon stabilized groundwater elevations. Potentiometric surface maps shall be prepared for each set of groundwater elevation data available. The applicant shall include a discussion of the effects of site modifications, seasonal variations in precipitation, and existing and future land uses of the site on the potentiometric surface.

(7) If a geological map or report from either the Department of Mines, Minerals, and Energy or the U.S. Geological Survey is published, it shall be included.

F. For solid waste management facilities regulated under Part IV (9VAC20-81-300 et seq.) of this chapter:

1. A cataloging and description of aquifers, geological features or any similar characteristic of the site that might affect the operation of the facility or be affected by that operation.

2. If a geological map or report from either the Department of Mines, Minerals, and Energy or the U.S. Geological Survey is published, it shall be included.

G. For a new sanitary landfill or for an increase in daily disposal limit, an adequacy report prepared by the Virginia Department of Transportation or other responsible agency. As required under § 10.1-1408.4 A 1 of the Code of Virginia, the report will address the adequacy of transportation facilities that will be available to serve the landfill, including daily travel routes and traffic volumes that correlate with the daily disposal limit, road congestion, and highway safety. The department may determine an adequacy report is not required for small increases in the daily disposal limit.

H. For a new sanitary landfill or an expansion of an existing sanitary landfill or an increase in capacity by expanding an existing facility vertically upward, a Landfill Impact Statement (LIS).

1. A report must be provided to the department that addresses the potential impact of the landfill on parks, recreational areas, wildlife management areas, critical habitat areas of endangered species as designated by applicable local, state, or federal agencies, public water supplies, marine resources, wetlands, historic sites, fish and wildlife, water quality, and tourism. This report shall comply with the statutory requirements for siting landfills in the vicinity of public water supplies or wetlands as set forth in §§ 10.1-1408.4 and 10.1-1408.5 of the Code of Virginia.

2. The report will include a discussion of the landfill configuration and how the facility design addresses any impacts identified in the report required under subdivision 1 of this subsection.

3. The report will identify all of the areas identified under subdivision 1 of this subsection that are within five miles of the facility.

I. For a new facility or an expansion of an existing facility, or an increase in capacity by expanding an existing facility vertically upward, a signed statement by the applicant that he has sent written notice to all adjacent property owners or occupants that he intends to develop a SWMF or expand laterally or vertically upward of an existing facility on the site, a copy of the notice and the names and addresses of those to whom the notices were sent.

J. The total capacity of the solid waste management facility.

K. One or more of the following indicating that the public interest would be served by a new facility or a facility expansion, which includes:

1. Cost effective waste management for the public within the service area comparing the costs of a new facility or facility expansion to waste transfer, or other disposal options;

2. The facility provides protection of human health and safety and the environment;

3. The facility provides alternatives to disposal including reuse or reclamation;

4. The facility allows for the increased recycling opportunities for solid waste;

5. The facility provides for energy recovery or the subsequent use of solid waste, or both, thereby reducing the quantity of solid waste disposed;

6. The facility will support the waste management needs expressed by the host community; or

7. Any additional factors that indicate that the public interest would be served by the facility.

L. For CCR surface impoundments regulated under Part VIII (9VAC20-81-800 et seq.) of this chapter, site hydrogeologic and geotechnical reports by a professional geologist or professional engineer that meet the requirements of 9VAC20-81-800.

Part B permit application requirements for all solid waste disposal facilities regulated under Part III (9VAC20-81-100 et seq.) are contained in this section. The Part B applications shall include the following requirements and documentation:

A. Plans submitted as part of the Part B application shall include the following:

1. Design plans. Design plans shall be certified by a professional engineer and shall consist of, at least, the following:

a. A title sheet indicating the project title, who prepared the plans, the person for whom the plans were prepared, a table of contents, and a location map showing the location of the site and the area to be served.

b. An existing site conditions plans sheet indicating site conditions prior to development.

c. A base grade plan sheet indicating site base grades or the appearance of the site if it were excavated in its entirety to the base elevation, before installation of any engineering modifications or the beginning of any filing.

d. An engineering modification plan sheet indicating the appearance of the site after installation of engineering modifications. More than one plan sheet may be required for complicated sites. This plan is required only for those sites with engineering modifications.

e. A final site topography plan sheet indicating the appearance of the site, and final contours of the site at closing including the details necessary to prepare the site for long-term care.

f. A series of phasing plan sheets showing the progression of site development through time. At a minimum, a separate plan shall be provided for initial site preparations and for each subsequent major phase or new area where substantial site preparation must be performed. Each such plan shall include a list of construction items and quantities necessary to prepare the phase indicated.

g. A site monitoring plan showing the location of all devices for the monitoring of leachate production, groundwater quality, and gas production and venting. This plan shall include a table indicating the parameters to be monitored for the frequency of monitoring before and during site development. The groundwater monitoring plan shall include information as applicable under 9VAC20-81-250 or 9VAC20-81-260.

h. A series of site cross-sections shall be drawn perpendicular and parallel to the site base line at a maximum distance of 500 feet between cross-sections and at points of grade break and important construction features. The location of the cross-sections shall be shown on the plan sheets and the section labeled using the site grid system. Where applicable, each cross-section shall show existing, proposed base and final grades; soil borings and monitoring wells that the section passes through or is adjacent to; soil types, bedrock and water table; leachate control, collection, and monitoring systems; limits of filling for each major waste type; drainage control structures; access roads and ramps on the site perimeter and within the active fill area; the filling sequence or phases; and other site features.

(1) A survey grid with base lines and bench marks to be used for field control.

(2) Limits of filling for each major waste type or fill area.

(3) All drainage patterns and surface water drainage control structures both within the actual fill area and at the site perimeter. Such structures may include berms, ditches, sedimentation basins, pumps, sumps, culverts, pipes, inlets, velocity breaks, sodding, erosion matting, or other methods of erosion control.

(4) Ground surface contours at the time represented by the drawing. Spot elevations shall be indicated for key features.

2. Closure plan. A detailed closure plan shall be prepared and submitted. Such a plan shall be prepared in two parts, one reflecting those measures to be accomplished at the midpoint of the permit period, and the other when the useful life of the landfill is reached. The plan shall show how the facility will be closed to meet the requirements of 9VAC20-81-160 and 9VAC20-81-170, or 9VAC20-81-800. The plan shall include the procedures to be followed in closing the site, sequence of closure, time schedules, final plans of completion of closure to include final contours, and long-term care plan sheets showing the site at the completion of closing and indicating those items anticipated to be performed during the period of long-term care for the site. The plans shall include a table listing the items and the anticipated schedule for monitoring and maintenance. In many instances this information can be presented on the final site topography sheet.

3. Postclosure plan. A postclosure care plan containingshall contain long-term care information including a discussion of the procedures to be utilized for the inspection and maintenance of: run-off control structures; settlement; erosion damage; gas and leachate control facilities; monitoring for gas, leachate, and groundwater; and other long-term care needs.

B. A design report shall be submitted, which shall include supplemental discussions and design calculations, to facilitate department review and provide supplemental information including the following information:

1. The design report shall identify the project title; engineering consultants; site owner, permittee and operator; proposed permitted acreage; hours of operation; wastes to be accepted; site life; design capacity; and the daily disposal limit. It shall also identify any variances desired by the applicant.

2. A discussion of the basis for the design of the major features of the site, such as traffic routing, base grade and relationships to subsurface conditions, anticipated waste types and characteristics, phases development, liner design, leachate management system design, facility monitoring, and similar design features shall be provided. A list of the conditions of site development as stated in the department determination of site feasibility and the measures taken to meet the conditions shall be included. A discussion of all calculations, such as refuse-cover balance computations, stockpile sizing estimates, estimate of site life, and run-off and leachate volume estimates shall be included. The calculations shall be summarized with the detailed equations presented in an appendix.

3. Specifications, including detailed instructions to the site operator for all aspects of site construction.

b. A plan for initial site preparation including a discussion of the field measurements, photographs to be taken, sampling and testing procedures to be utilized to verify that the in-field conditions encountered were the same as those defined in the feasibility report, and to document that the site was constructed according to the engineering plans and specifications submitted for department approval.

C. Financial assurance documentation. When required by the Financial Assurance Regulations of Solid Waste Disposal, Transfer, and Treatment Facilities (9VAC20-70), the applicant shall provide the completed documentation to demonstrate compliance with those regulations; proof of financial responsibility must be for the entity identified in accordance with 9VAC20-81-450 B 10.

A. Part B permit application requirements for CCR surface impoundments regulated under Part VIII (9VAC20-81-800 et seq.) of this chapter are contained in this section. The Part B applications shall include the requirements and documentation described in this section.

A. Solid waste disposal facilities. An operations manual shall be prepared and maintained in the operating record. The operations manual shall include a certification page signed by a responsible official. This signature shall certify the manual meets the requirements of this chapter. This manual shall be reviewed and recertified annually (by December 31 of each calendar year) to ensure consistency with current operations and regulatory requirements, and shall be made available for review by the department upon request. The operations manual for disposal facility operation shall contain at least the following plans:

1. An operations plan that at a minimum includes:

a. Explanation of how the design and construction plans will be implemented from the initial phase of operation until closure;

d. Detailed instructions to the site operator regarding all aspects of site operation in order to ensure that the operational requirements of Part III (9VAC20-81-100 et seq.) of this chapter are achieved. References to specifications on the plan sheet shall be pointed out as well as additional instructions included, where appropriate. At a minimum, the plan specifications shall include:

(3) Site closing information consisting of a discussion of those actions necessary to prepare the site for long-term care and final use in the implementation of the closure plan.

2. An inspection plan that at a minimum includes:

a. A schedule for inspecting all applicable major aspects of facility operations necessary to ensure compliance with the requirements of Part III (9VAC20-81-100 et seq.) of this chapter.

b. The frequency of inspection based on the rate of potential equipment deterioration or malfunction and the probability of an adverse incident occurring if the deterioration or malfunction goes undetected between inspections. The plan shall establish the minimum frequencies for inspections required in 9VAC20-81-140. This plan shall identify areas of the facility subject to spills such as loading and unloading areas and areas in which significant adverse environmental or health consequences may result if breakdown occurs.

d. The types of potential problems that may be observed during the inspection and any maintenance activities required as a result of the inspection.

3. A health and safety plan that includes description of measures to protect the facility and other personnel from injury and is consistent with the requirements of 29 CFR Part 1910.

4. An unauthorized waste control plan that includes, at a minimum, the methods to be used by the operator to prevent unauthorized disposal of hazardous wastes, bulk liquids, or other wastes not authorized for management or disposal in the facility in order to meet the requirements of 9VAC20-81-140.

5. An emergency contingency plan that includes:

a. Delineation of procedures for responding to fire, explosions, or any unplanned sudden or nonsudden releases of harmful constituents to the air, soil, or surface water;

b. Description of the actions facility personnel shall take in the event of various emergency situations;

c. Description of arrangements made with the local police and fire department that allow for immediate entry into the facility by their authorized representatives should the need arise, such as in the case of personnel responding to an emergency situation; and

d. A list of names, addresses, and phone numbers (office and home) of all persons qualified to act as emergency coordinator for the facility. This list shall be kept up to date. Where more than one person is listed, one shall be named as primary emergency coordinator and the others shall be listed in the order in which they will assume responsibility as alternates.

6. A landscaping plan that shall:

a. Delineate existing site vegetation to be retained;

b. Discuss methods to be employed in order to ensure protection of vegetation to be retained during the clearing, grading and construction phases of the project and the supplemental vegetation to be planted; and

c. InformationProvide information relating to vegetation type, location and purpose, such as for buffer, screening or aesthetics, and schedules for planting, shall accompany the plan.

B. Other solid waste management facilities. An operations manual shall be prepared and maintained in the operating record. The Operations Manual shall include a certification page signed by a responsible official. This signature shall certify the manual meets the requirements of this chapter. This manual shall be reviewed and re-certified annually (by December 31 of each calendar year) to ensure consistency with current operations and regulatory requirements and shall be made available to the department upon request. The manual for facility operation shall contain at least the following plans:

1. An operations plan that at a minimum includes:

a. An explanation of how the design and construction plans will be implemented from the initial phase of operation until closure.

b. Detailed instructions to the site operator regarding all aspects of site operation in order to ensure that the applicable operational requirements of Part IV (9VAC20-81-300 et seq.) are achieved. Daily operations including a discussion of the timetable for development, waste types accepted or excluded, typical waste handling techniques, hours of operation, traffic routing, drainage and erosion control, windy, wet and cold weather operations, fire protection equipment, manpower, methods for handling of any unusual waste types, methods for vector, dust and odor control, daily cleanup, salvaging, record keeping, parking for visitors and employees, monitoring, backup equipment with names and telephone numbers where equipment may be obtained, and other special design features. The daily operations section of the operations manual may be developed as a removable section to improve accessibility for the site operator.

c. Development of subsequent phases of the facility, if applicable.

d. Site closing information consisting of a discussion of those actions necessary to prepare the site for long-term care and final use in the implementation of the closure plan.

2. An inspection plan that at a minimum includes:

a. A schedule for inspecting all applicable major aspects of facility operations necessary to ensure compliance with the requirements of Part IV (9VAC20-81-300 et seq.) of this chapter.

b. The frequency of inspection shall be based on the rate of potential equipment deterioration or malfunction and the probability of an adverse incident occurring if the deterioration or malfunction goes undetected between inspections. The plan shall establish the minimum frequencies for inspections required in 9VAC20-81-340. This plan shall identify areas of the facility subject to spills such as loading and unloading areas and areas in which significant adverse environmental or health consequences may result if breakdown occurs.

d. The types of potential problems that may be observed during the inspection and any maintenance activities required as a result of the inspection.

3. A health and safety plan that includes description of measures to protect the facility and other personnel from injury and is consistent with the requirements of 29 CFR Part 1910.

4. An unauthorized waste control plan that includes, at a minimum, the methods to be used by the operator to prevent unauthorized disposal of hazardous wastes, bulk liquids, or other wastes not authorized for management or disposal in the facility in order to meet the applicable requirements of 9VAC20-81-340.

5. An emergency contingency plan that includes:

a. Delineation of procedures for responding to fire, explosions, or any unplanned sudden or nonsudden releases of harmful constituents to the air, soil, or surface water;

b. Description of the actions facility personnel shall take in the event of various emergency situations;

c. Description of arrangements made with the local police and fire department that allow for immediate entry into the facility by their authorized representatives should the need arise, such as in the case of personnel responding to an emergency situation; and

d. A list of names, addresses and phone numbers (office and home) of all persons qualified to act as emergency coordinator for the facility. This list shall be kept up to date. Where more than one person is listed, one shall be named as primary emergency coordinator and the others shall be listed in the order in which they will assume responsibility as alternates.

1. The applicant fails to provide complete information required for an application;

2. The facility does not conform with the siting standards set forth for the facility in 9VAC20-81-120or, 9VAC20-81-320, or 9VAC20-81-800, unless an exemption or variance from the specific siting criteria has been granted;

3. The facility design and construction plans or operating plans, or both, fail to comply with requirements specified for the proposed type of facility unless an exemption or variance from the specific requirement has been granted;

4. The department finds that there is an adverse impact on the public health or the environment by the design, construction, or operation;

5. The applicant is not able to fulfill the financial responsibility requirements as specified in 9VAC20-70; or

6. Current information sufficient to make the determination required in § 10.1-1408.1 D of the Code of Virginia has not been provided.

B. Reasons for the denial of any permit shall be provided to the applicant in writing by the director within 30 days of the decision to deny the permit.

A. Permits may be modified at the request of any interested person or upon the director's initiative. However, permits may only be modified for the reasons specified in subsections E and F of this section. All requests shall be in writing and shall contain facts or reasons supporting the request. Any permit modification authorizing expansion of an existing sanitary landfill shall incorporate the conditions required for a disposal capacity guarantee in § 10.1-1408.1 P of the Code of Virginia. This provision does not apply to permit applications from one or more political subdivisions that will only accept waste from within those political subdivisions' jurisdiction or municipal solid waste generated within other political subdivisions pursuant to an interjurisdictional agreement.

B. If the director decides the request is not justified, he shall send the requester a response providing justification for the decision.

C. If the director tentatively decides to modify, he shall prepare a draft permit incorporating the proposed changes. The director may request additional information and may require the submission of an updated permit application. In a permit modification under subsection E of this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect. During any modification proceeding the permittee shall comply with all conditions of the existing permit until the modified permit is issued.

D. When the director receives any information, he may determine whether or not one or more of the causes listed for modification exist. If cause exists, the director may modify the permit on his own initiative subject to the limitations of subsection E of this section and may request an updated application if necessary. If a permit modification satisfies the criteria in subsection F of this section for minor modifications, the permit may be modified without a draft permit or public review. Otherwise, a draft permit shall be prepared and other appropriate procedures followed.

E. Causes for modification. The director may modify a permit upon his own initiative or at the request of a third party:

1. When there are material and substantial alterations or additions to the permitted facility or activity that occurred after permit issuance that justify the application of permit conditions that are different or absent in the existing permit;

2. When there is found to be a possibility of pollution causing significant adverse effects on the air, land, surface water, or groundwater;

3. When an investigation has shown the need for additional equipment, construction, procedures and testing to ensure the protection of the public health and the environment from adverse effects;

4. If the director has received information pertaining to circumstances or conditions existing at the time the permit was issued that was not included in the administrative record and would have justified the application of different permit conditions, the permit may be modified accordingly if in the judgment of the director such modification is necessary to prevent significant adverse effects on public health or the environment;

5. When the standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued;

6. When the director determines good cause exists for modification of a compliance schedule, such as an act of God, strike, flood, or material shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy;

7. When a modification of a closure plan is required under 9VAC20-81-160,or 9VAC20-81-360, or 9VAC20-81-800 and the permittee has failed to submit a permit modification request within the specified period;

8. When the corrective action program specified in the permit under 9VAC20-81-260or 9VAC20-81-800 has not brought the facility into compliance with the groundwater protection standard within a reasonable period of time; or

9. When cause exists for revocation under 9VAC20-81-570 and the director determines that a modification is more appropriate.

6. Replacement of an existing well that has been damaged or rendered nonoperable, without change to location, design, or depth of the well

7. Changes to the expected year of final closure, where other permit conditions are not changed

8. Changes in postclosure use of the property, without disturbance of the cover

9. Modification of a leachate tank management practice

1. Permittee change. Items listed under Permittee Change in Table 5.2 may be implemented without approval of the department. If a permittee changes such an item, the permittee shall:

a. Notify the department of the change at least 14 calendar days before the change is put into effect, indicating the affected permit conditions; and

b. Notify the governing body of the county, city, or town in which the facility is located, within 90 calendar days after the change is put into effect.

2. Minor modifications.

a. Minor modifications apply to minor changes that keep the permit current with routine changes to the facility or its operation. These changes do not substantially alter the permit conditions or reduce the capacity of the facility to protect human health or the environment.

b. Minor modifications may be requested for changes that will result in a facility being more protective of human health and the environment or equivalent to the standards contained in this chapter, unless otherwise noted in Table 5.2. The request for such a minor permit modification will be accompanied by a description of the desired change and an explanation of the manner in which the health and environment will be protected in a greater degree than required by the chapter.

c. Minor permit modifications may be made only with the prior written approval of the department. The permittee shall notify the department that a minor modification is being requested. Notification of the department shall be provided by certified mail or other means that establish proof of delivery. This notice shall specify the changes being made to permit conditions or supporting documents referenced by the permit and shall include an explanation of why they are necessary. Along with the notice, the permittee shall provide the applicable information required by 9VAC20-81-460 and 9VAC20-81-470 or as required by 9VAC20-81-480.

d. The permittee shall send a notice of the modification to the governing body of the county, city or town in which the facility is located. This notification shall be made within 90 days after the department approves the request.

3. Major modifications.

a. Major modifications substantially alter the facility or its operation. Major modifications are listed in Table 5.2.

b. The permittee shall submit a modification request to the department that:

(1) Describes the exact change to be made to the permit conditions and supporting documents referenced by the permit;

c. No later than 90 days after receipt of the notification request, the director will determine whether the information submitted under subdivision 3 b (4) of this subsection is adequate to formulate a decision. If found to be inadequate, the permittee will be requested to furnish additional information within 30 days of the request by the director to complete the modification request record. The 30-day period may be extended at the request of the applicant. After the completion of the record, the director will either:

(1) Approve the modification request, with or without changes, and draft a permit modification accordingly;

(2) Deny the request; or

(3) Approve the request, with or without changes, as a temporary authorization having a term of up to 180 days in accordance with subdivision 3 of this subsection.

d. If the director proposes to approve the permit modification, he will proceed with the permit issuance in accordance with 9VAC20-81-450 E.

e. The director may deny or change the terms of a major permit modification request under subdivision F 3 b of this section for the following reasons:

(1) The modification request is incomplete;

(2) The requested modification does not comply with the appropriate requirements of Part III (9VAC20-81-100 et seq.) or, Part IV (9VAC20-81-300 et seq.), or Part VIII (9VAC20-81-800 et seq.) of this chapter or other applicable requirements; or

(3) The conditions of the modification fail to protect human health and the environment.

4. Temporary authorizations.

a. Upon request of the permittee, the director may, without prior public notice and comment, grant the permittee a temporary authorization in accordance with the requirements of subdivision 4 of this subsection. Temporary authorizations shall have a term of not more than 180 days.

b. (1) The permittee may request a temporary authorization for any major modification that meets the criteria in subdivision 4 c (2) (a) or (b) of this subsection; or that meets the criteria in subdivision 4 c (2) (c) and (d) of this subsection and provides improved management or treatment of a solid waste already listed in the facility permit.

(2) The temporary authorization request shall include:

(a) A description of the activities to be conducted under the temporary authorization;

(b) An explanation of why the temporary authorization is necessary; and

(c) Sufficient information to ensure compliance with the standards of Part III (9VAC20-81-100 et seq.) or, Part IV (9VAC20-81-300 et seq.), or Part VIII (9VAC20-81-800 et seq.)standardsof this chapter.

(3) The permittee shall send a notice about the temporary authorization request to all persons on the facility mailing list. This notification shall be made within seven days of submission of the authorization request.

c. The director shall approve or deny the temporary authorization as quickly as practical. To issue a temporary authorization, the director shall find:

(c) To enable the permittee to respond to sudden changes in the types or quantities of the wastes managed under the facility permit; or

(d) To facilitate other changes to protect human health and the environment.

d. A temporary authorization may be reissued for one additional term of up to 180 days provided that the permittee has requested a major permit modification for the activity covered in the temporary authorization, and the director determines that the reissued temporary authorization involving a major permit modification request is warranted to allow the authorized activities to continue while the modification procedures of subdivision 3 of this subsection are conducted.

5. The director's decision to grant or deny a permit modification request under subdivision of this subsection may be appealed under the case decision provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

6. Newly defined or identified wastes. The permitted facility is authorized to continue to manage wastes defined or identified as solid waste under 9VAC20-81-95 if:

a. It was in existence as a solid waste management facility with respect to the newly defined or identified solid waste on the effective date of the final rule defining or identifying the waste; and

b. It is in compliance with the standards of Part III (9VAC20-81-100 et seq.) or, Part IV (9VAC20-81-300 et seq.), or Part VIII (9VAC20-81-800 et seq.) of this chapter, as applicable, with respect to the new waste, submits a minor modification request on or before the date on which the waste becomes subject to the new requirements; or

c. It is not in compliance with the standards of Part III (9VAC20-81-100 et seq.) or, Part IV (9VAC20-81-300 et seq.), or Part VIII (9VAC20-81-800 et seq.) of this chapter, as applicable, with respect to the new waste, also submits a complete permit modification request within 180 days after the effective date of the definition or identifying the waste.

7. Research, development and demonstration plans. Research, development and demonstration (RDD) plans may be submitted for sanitary landfills that meet the applicability requirements. These plans shall be submitted as a major permit modification application for existing sanitary landfills or as a part of the Part B application for new sanitary landfills.

a. Applicability.

(1) RDD shall be restricted to permitted sanitary landfills designed with a composite liner system, as required by 9VAC20-81-130 J 1. The effectiveness of the liner system and leachate collection system shall be demonstrated in the plan and shall be assessed at the end of the testing period in order to compare the effectiveness of the systems to the start of the RDD testing period.

(2) Operating permitted sanitary landfills that have exceeded groundwater protection standards at statistically significant levels in accordance with 9VAC20-81-250 B, from any waste unit on site shall have implemented a remedy in accordance with 9VAC20-81-260 C prior to the RDD plan submittal. Operating permitted sanitary landfills that have an exceedance in the concentration of methane gas migrating from the landfill in accordance with 9VAC20-81-200 shall have a gas control system in place per 9VAC20-81-200 B prior to the RDD plan submittal.

(3) An owner or operator of a sanitary landfill that disposes of 20 tons of municipal solid waste per day or less, based on annual average, may not apply for a modification to include a RDD plan.

(4) The sanitary landfill shall have a leachate collection system designed and constructed to maintain less than a 30 cm depth of leachate on the liner.

b. Requirements.

(1) RDD Plans may be submitted for activities such as:

(a) The addition of liquids in addition to leachate and gas condensate from the same landfill for accelerated decomposition of the waste mass;

(b) Allowing run-on water to flow into the landfill waste mass;

(c) Allowing testing of the construction and infiltration performance of alternative final cover systems; and

(d) For other measures to be taken to enhance stabilization of the waste mass.

(2) No landfill owner or operator may continue to implement an RDD plan beyond any time limit placed in the initial plan approval or any renewal without issuance of written prior approval by the department. Justification for renewals shall be based upon information in annual and final reports as well as research and findings in technical literature.

(3) RDD plans may not include changes to the approved design and construction of subgrade preparation, liner system, leachate collection and removal systems, final cover system, gas and leachate systems outside the limits of waste, run-off controls, run-on controls, or environmental monitoring systems exterior to the waste mass.

(4) Implementation of an approved RDD plan shall comply with the specific conditions of the RDD Plan as approved in the permit for the initial testing period and any renewal.

(5) Structures and features exterior to the waste mass or waste final grades shall be removed at the end of the testing period, unless otherwise approved by the department in writing.

(6) The RDD plan may propose an alternate final cover installation schedule.

c. An RDD plan shall include the following details and specifications. Processes other than adding liquids to the waste mass and leachate recirculation may be practiced in conjunction with the RDD plan.

(1) Initial applications for RDD plans shall be submitted for review and approval prior to the initiation of the process to be tested. These plans shall specify the process that will be tested, describe preparation and operation of the process, describe waste types and characteristics that the process will affect, describe desired changes and end points that the process is intended to achieve, define testing methods and observations of the process or waste mass that are necessary to assess effectiveness of the process, and include technical literature references and research that support use of the process. The plans shall specify the time period for which the process will be tested. The plans shall specify the additional information, operating experience, data generation, or technical developments that the process to be tested is expected to generate.

(2) The test period for the initial application shall be limited to a maximum of three years.

(3) Renewals of testing periods shall be limited to a maximum of three years each. The maximum number of renewals shall be limited to three.

(4) Renewals shall require department review and approval of reports of performance and progress on achievement of goals specified in the RDD plan.

(5) RDD Plans for addition of liquids, in addition to leachate and gas condensate from the same landfill, for accelerated decomposition of the waste mass and/oror for allowing run-on water to flow into the landfill waste mass shall demonstrate that there is no increased risk to human health and the environment. The following minimum performance criteria shall be demonstrated.

(a) Risk of contamination to groundwater or surface water will not be greater than the risk without an approved RDD plan.

(b) Stability analysis demonstrating the physical stability of the landfill.

(c) Landfill gas collection and control in accordance with applicable Clean Air Act requirements (i.e., Title V, NSPS or EG rule, etc.).

(d) For RDD plans that include the addition of offsite nonhazardous waste liquids to the landfill, the following information shall be submitted with the RDD plan:

(ii) A list of proposed characteristics for screening the accepted liquids is developed; and

(iii) The quantity and quality of the liquids are compatible with the RDD plan.

If offsite nonhazardous liquids are certified by the offsite generator as stormwater uncontaminated by solid waste, screening is not required for this liquid.

(6) RDD plans for testing of the construction and infiltration performance of alternative final cover systems shall demonstrate that there is no increased risk to human health and the environment. The proposed final cover system shall be as protective as the final cover system required by 9VAC20-81-160 D. The following minimum performance criteria shall be demonstrated:

(a) No build up of excess liquid in the waste and on the landfill liner;

(b) Stability analysis demonstrating the physical stability of the landfill;

(c) No moisture will escape from the landfill to the surface water or groundwater; and

(d) Sufficient reduction in infiltration so that there will be no leakage of leachate from the landfill.

(7) RDD plans that evaluate introduction of liquids in addition to leachate or gas condensate from the same landfill shall propose measures to be integrated with any approved leachate recirculation plan and compliance with requirements for leachate recirculation.

(8) RDD plans shall include a description of warning symptoms and failure thresholds that will be used to initiate investigation, stand-by, termination, and changes to the process and any other landfill systems that might be affected by the process, such as gas extraction and leachate recirculation. Warning symptoms shall result in a reduction or suspension of liquids addition, leachate recirculation, investigation, and changes to be implemented before resuming the process being tested. Failure thresholds shall result in termination of the process being tested, investigation, and changes that will be submitted to the department for review and approval in writing prior to resumption of the process being tested.

(9) RDD plans shall include an assessment of the manner in which the process to be tested might alter the impact that the landfill may have on human health or environmental quality. The assessment shall include both beneficial and deleterious effects that could result from the process.

(10) RDD plans shall include a geotechnical stability analysis of the waste mass and an assessment of the changes that the implementation of the plan are expected to achieve. The geotechnical stability analysis and assessment shall be repeated at the end of testing period, with alteration as needed to include parameters and parameter values derived from field measurements. The plan shall define relevant parameters and techniques for field measurement.

(11) RDD plans shall propose monitoring parameters, frequencies, test methods, instrumentation, recordkeeping and reporting to the department for purposes of tracking and verifying goals of the process selected for testing.

(12) RDD plans shall propose monitoring techniques and instrumentation for potential movements of waste mass and settlement of waste mass, including proposed time intervals and instrumentation, pertinent to the process selected for testing.

(13) RDD plans shall propose construction documentation, construction quality control and construction quality assurance measures, and recordkeeping for construction and equipment installation that is part of the process selected for testing.

(15) RDD plans that include aeration of the waste mass shall include a temperature monitoring plan, a fire drill and safety program, instructions for use of liquids for control of temperature and fires in the waste mass, and instructions for investigation and repair of damage to the liner and leachate collection system.

(16) RDD plans may include an alternate interim cover system and final cover installation schedule. The interim cover system shall be designed to account for weather conditions, slope stability, and leachate and gas generation. The interim cover shall also control, at a minimum, disease vectors, fires, odors, blowing litter, and scavenging.

d. Reporting. An annual report shall be prepared for each year of the RDD testing period, including any renewal periods, and a final report shall be prepared for the end of the testing period. These reports shall assess the attainment of goals proposed for the process selected for testing, recommend changes, recommend further work, and summarize problems and their resolution. Reports shall include a summary of all monitoring data, testing data and observations of process or effects and shall include recommendations for continuance or termination of the process selected for testing. Annual reports shall be submitted to the department within three months after the anniversary date of the approved permit or permit modification. Final reports shall be submitted